What Every Lawyer and Judge Needs to Know About Immigrant Children

By Linda A. Brandmiller

The 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

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 because a declaratory judgment has no teeth. The USCIS will almost always determine that the declaratory judgment was granted solely for an immigration benefit because it provides no relief for the child— especially for children over age eighteen.

For the child to qualify for SIJ status, a judge must issue an order finding that the child’s reunification with one or both parents is not viable due to abuse, abandonment, neglect, or a similar basis under state law. It does not require formal termination of parental rights. Additionally, a SAPCR allows for child support, conservatorship, and name change—issues unrelated to legal status and specifically in line with state laws regarding support and protection of children. According to USCIS guidance, the judge’s order, or other documents submitted, must provide a basic statement of the facts that supported the order, sufficient to establish that there was a factual basis for the court’s findings. The court or an administrative agency must determine that it is not in the child’s best interest to be returned to his or her home country. In order for a child to qualify for SIJ status, the juvenile court judge must sign a special order, prepared by the child’s attorney, stating that all the findings required for SIJ status have been made.

Young Adults. Under Tex. Fam. Code § 101.003(a), “child” or “minor” means a person under eighteen years of age who is not and has not been married, or who has not had the disabilities of minority removed for general purposes. Further, under Section 101.003(b), in the context of child support, “child” includes a person over eighteen years of age for whom a person may be obligated to pay child support. A young adult aged eighteen to twenty who is enrolled in high school (not GED) will get the benefit of the extended definition of “child” and make SIJ status a viable option for legal status.

Using this extended definition of “child,” Bexar County District Court Judge Peter Sakai first pointed out that “family” courts had jurisdiction over eighteen-year-olds who were enrolled in high school. 4 With state court orders, those young adults were approved by USCIS for SIJ status. Then, in 2015, without warning, USCIS implemented a policy that Texas child support orders did not provide “relief” from abuse/abandonment/neglect, and therefore did not make such a child dependent on the juvenile court. The result was that, in Texas, almost no one who obtained a state court order between the ages of eighteen and twenty-one was approved for SIJ status. Several hardheaded lawyers, however, continued obtaining state court orders and submitting the petitions believing that one day, USCIS would reverse this policy.

Lagos-Aguilera v. Mayorkas, et al. 5 In 2021, TKR Law Group in Austin, spearheaded by Tania Rosamond with assistance from David Walding, filed two federal lawsuits under the Administrative Procedure Act to challenge this policy. One case—Lagos-Aguilera v. Mayorkas, et al.—was filed in the District of Maryland and concerned seven plaintiffs who were all “children” (as that term is defined by the Texas Family Code and federal immigration law) under the age of twenty-one when they obtained the necessary SIJ findings in a Texas SAPCR order. Each plaintiff had filed a petition for SIJ status, which had been denied on the grounds that the plaintiffs had failed to establish dependency upon a juvenile court. USCIS reasoned that because the plaintiffs were over eighteen years of age, the Texas Family Court was not functioning as a “juvenile” court. The federal litigation successfully concluded in January 2022, and USCIS reversed its prior position, which had denied petitions for those immigrant minors between the ages of eighteen and twenty-one. The TKR Law Group also obtained assurances that, upon request, USCIS would reopen similar cases and review them without the need for litigation, and that future cases would be adjudicated using the correct standard.

Part 2: Immigration Process

The state court order, complete with SIJ findings and recommendation that the child not be returned to the country of origin, is then sent to USCIS as part of the child’s petition for SIJ Status (Form I360). This takes approximately six months for approval. After approval, the child is issued a “priority date” and is then “in line” for a visa. The United States Department of State issues a visa bulletin every month, which determines the applications being reviewed. The SIJ priority date is in the employment-based fourth category. 6 Once the date on the visa bulletin is after the child’s priority date, the child may file for residency. In April 2022, for instance, the USCIS was working on petitions submitted from Central American countries on or before May 1, 2017.

After a lawsuit in the Western District of Missouri in 2021, 7 it is now also possible for those youths with an approved Form I360 petition for SIJ status to apply for a work permit without having to wait for their priority date to be current. This particularly benefits those petitioners aged sixteen to twenty-one because they can get a Social Security number and a Texas driver’s license and can work part-time while waiting for residency.

Conclusion

If you are preparing a divorce petition, and there is a child without immigration status, SIJ may apply. If you are representing a child in a criminal proceeding who has been abused/abandoned or neglected, SIJ may apply. If you encounter an immigrant child living with a stepparent, SIJ may apply. If you come across an unaccompanied minor, SIJ may apply. If you find an immigrant child with no father on the birth certificate, SIJ may apply. If you are involved in a CPS case, SIJ most definitely may apply. These children are everywhere in our legal, educational, and social systems, and they are not being adequately screened for an important remedy designed exclusively for the purpose of assisting them in obtaining legal status.

Linda A. Brandmiller is an Immigration Attorney in San Antonio who is happy to assist with the SIJ process on either the state court or immigration side.

ENDNOTES

1. Osorio-Martinez v. Att’y Gen. of the United States of Am., 893 F.3d 153, 169 (3d Cir. 2018).

2. Adoption Note: Adoption is almost never the best option for an immigrant child. Many adoptive parents erroneously believe they can “pass” their United States citizenship status to their adopted child (filing a petition, paying for a home study, etc.). However, there are very strict rules regarding petitioning an adopted child and the family-based petition process is generally not available to children from Hague countries. Hague Convention criteria must be complied with prior to the child’s entering the United States and cannot be remedied once the child is in the country. Under the correct procedure, children adopted from foreign countries enter the United States with permission after a home country assessment and approval from the home country’s child protective agency. Adoptive parents must show two years of formal legal custody and two years of joint residence with the child. Additionally, the child has to be adopted before the age of sixteen. Therefore, in most cases, while adoption of an immigrant child is legal, it provides no benefit to the child in obtaining legal status and, ironically, prejudices the child in the SIJ process because, once adopted, the child’s “abandonment” issues— which would have provided logic for SIJ status—are largely remedied.

3. See Note 2, supra.

4. Tex. Fam. Code § 154.001.

5. Lagos-Aguilera v. Mayorkas, et al., 1:21-cv-01899 (D. Md.).

7. Godinez, et al. v. U.S. DHS, et al., No. 20-00828-CV-W-GAF (W.D.Mo. Feb. 10, 2021).