Defending Special Immigrant
Juvenile Status
Abuse, Neglect, Abandonment, and Child Migration
Since October 2018, more than 115,000 children have crossed the southwest border and entered the United States without a parent or legal guardian. Many factors are pushing them north from their homes in Central America, including unbridled violence by gangs and cartels. Many are also escaping family violence. Various surveys report that 20-30 percent of all unaccompanied immigrant children, and 40 percent of the girls, have experienced abuse, neglect, or abandonment by their parents or other caregivers.
Protection
Congress created Special Immigrant Juvenile Status (SIJS) as a pathway to lawful permanent residency for immigrant children of unfit parents. To qualify for SIJS, a child must first seek protection from a state court. Congress enlisted the state courts to make certain factual findings because of their expertise in family law matters. A child is eligible to apply for SIJS if a state court finds that:
- The child is under 21 and unmarried
- The child is dependent on the court or needs to be placed in the custody of a person or entity appointed by the court
- The child cannot be reunified with one or both parents because of abuse, neglect, abandonment, or something similar
- It is not in the best interest of the child to return to his or her home country
Equipped with a state court order making these findings, a child can apply to federal immigration officials for SIJS. If the child’s petition is granted, federal law lifts the most common barriers to the child’s successful application for a green card.
Over the years, we have represented dozens of children who have secured SIJS and acquired lawful permanent residency on this basis. In 2020, we had seven active SIJS cases. Our current clients include, among others:
- Two boys, first cousins, who witnessed the murder of every adult in their extended family in a home attack by a local gang after the family matriarch reported the gang’s extortion efforts to the police
- A girl whose parents were such severe alcoholics that they failed to dress, bathe, or feed her when she was toddler, causing her to wander daily in a diaper to her grandmother’s house for food
- A brother and sister whose father was murdered by a local gang, which then turned on them, kidnapping them and shooting the brother twice as they fled
The Attack on SIJS
Although SIJS has saved many lives, and we hope it will save the lives of our current clients, the government has launched an attack on this form of relief that rivals its attack on asylum. In a spate of recent cases, the government has prosecuted and defended removal orders against juveniles whose SIJS petitions have been approved by immigration officials. This point bears repeating because it is irrational enough to cause confusion: One branch of the Department of Homeland Security–Immigration and Customs Enforcement (ICE)–seeks to remove children even though another branch of the Department– U.S. Citizenship and Immigration Services (USCIS)–has granted them SIJS.
ICE argues that SIJS protects children only once they are able to apply to become lawful permanent residents. But thousands of children, through no fault of their own, must wait years to apply because of annual limits on the number of visas issued to immigrants from their countries. Immigrants from El Salvador, Guatemala, Honduras, and Mexico are subject to visa backlogs. ICE maintains that while children from these countries wait for visas, they are subject to deportation.
The Response
As we learned of cases in which the government sought to remove SIJS beneficiaries, we convened a group of lawyers from immigration organizations all over the country to discuss how best to respond. The result is a series of amicus briefs, so far filed in the Eastern District of Virginia, the Tenth Circuit, and the Sixth Circuit, arguing that federal law prevents the removal of children with SIJS. Courts in which we did not file have cited the briefs, and organizations have relied on the briefs in comments opposing proposed regulations that would further undermine SIJS. Our hope is to ensure that this form of relief remains available to the young people who need it, and that once they are approved for SIJS, the government leaves them be while they wait for the opportunity to apply for green cards.
Various surveys report that 20-30 percent of all unaccompanied immigrant children, and 40 percent of the girls, have experienced abuse, neglect, or abandonment by their parents or other caregivers.
