How Special Immigrant Juvenile Status Should Leave Room for Reunification

By Kelsey Anliker, J.D. Class of 2023

One thing that I found interesting so far in the Immigration Clinic was our discussion of Special Immigrant Juvenile Status (SIJS). SIJS was created in the 1990s out of a need to support undocumented immigrant youth in the foster care system.¹ Congress made more significant changes to the process in 2008 under the Trafficking Victims Protection and Reauthorization Act (TVPRA 2008) to expand eligibility to children and young people regardless of whether or not they are in foster care.²

SIJS is a unique pathway in immigration law because it is a multi-court/agency process. SIJS is a powerful option for immigrant youth who have been abused, abandoned, or neglected by one or both parents, yet it also comes with a significant consequence. A person that receives legal permanent resident status from SIJS can never petition for either of their parents to receive legal status in the US, even if only one of the parents was abusive. The purpose behind this limitation was to ensure that an abusive parent cannot benefit from their child receiving status in the United States.³ This type of consequence is in line with other humanitarian relief consequences, for example, a person who receives asylum can never return to their home country.⁴ However, given that only one of the parents must be determined abusive in the state court, I would propose that this prohibition should end when a child turns 21 to encourage reunification with non-abusive parents.

How Does Someone Qualify for SIJS?

For a young person to qualify for SIJS, they must meet the following qualifications: be under 21, be unmarried, and be dependent on care from a juvenile court or placed in custody with an individual other than the child’s parents.⁵ Furthermore, SIJS requires a state court to make factual determinations that 1) the child’s reunification with one or both parents is not viable due to abuse, abandonment, neglect, or a similar basis under state law and 2) that it would not be in the child’s best interest to be returned to their home country.⁶ These factual findings are usually made during custody, guardianship, foster care, or other similar proceedings. After the state court makes the required factual findings, a young person can file for SIJS with USCIS, regardless of whether or not they are in immigration proceedings.⁷ If SIJS is granted, it gives the applicant a path to obtain legal permanent resident status (a “green card”).

SIJS and Virginia Law

Since SIJS requires state court findings, the process for obtaining the SIJS findings will be different in every state. This also means that a child who may be eligible for SIJS needs a lawyer familiar with the juvenile court system in their home state and someone familiar with immigration law.

One of the areas where states differ is in the age at which state court judges lose the ability to make factual findings. In 2021, the Virginia General Assembly amended Va. Code § 16.1-241,⁸ allowing the Juvenile & Domestic Relations Courts to have jurisdiction over a youth until they are 21 years old–so long as the juvenile court has jurisdiction over that youth before they turned 18 years old. In other words, the youth must first have a case pending before the local J&DR court before they turn 18 but turning 18 does not take away the court’s capacity to issue the findings of fact. This is critical because, prior to 2021, many young people were at risk of losing out on the ability to get these special findings of fact simply because the hearing couldn’t be scheduled before their eighteenth birthday. This welcome change helps to prevent this from happening.

In state court proceedings, judges make judicial findings of fact as described above. In Virginia, to make these determinations, the court will look to the best interests of the child as described in Va. Code § 20-124.3.⁹ As in many custody or guardianship cases, a guardian ad litem should be appointed to make independent recommendations about the best interests of the child.¹⁰

Challenges with SIJS

One of the unique issues with SIJS is how each state determines what age the immigrant youth can be when making the factual findings. Although immigration law is federal, the SIJS pathway intentionally left the key fact-finding to state court judges and each state’s juvenile court procedures. By extension, the state legislature can determine at what age the court has jurisdiction to make the factual findings necessary for SIJS. In Virginia, the case in the J&DR court must have started before the child turns 18.¹¹ However, in states like Maine, New York, and Massachusetts—to name only a few—the state has jurisdiction until the child reaches the age of 21, which is when SIJS statutorily runs out.¹²

Another challenge in applying for SIJS is that state court judges may feel unfamiliar with or wary of immigration proceedings and questions. Although juvenile courts routinely determine the best interests of the child, they may balk at the idea of determining if a child should or should not be returned to their home country since it feels like immigration law. However, Congress put this in the hands of state court judges for a reason.¹³ The state court is well-suited in making significant findings about if a child suffered abuse, neglect, or abandonment from their parents, and the best interests of the child.

A Proposed Change to SIJS

As mentioned above, certain types of humanitarian relief force the person receiving the benefit to give something up in return for status in the United States, like never returning to your home country if you receive asylum. While discussing that trade-off is beyond the scope of this blog, I think it is worth considering if the same logic stands with SIJS. When using the SIJS pathway, the child permanently gives up a right to petition for either of their parents.¹⁴ This limitation exists to prevent an abusive parent from using their child to receive an immigration benefit.¹⁵ However, this prohibition ignores the complexities¹⁶ of abusive relationships in families and forces a child to choose between their safety and potential reunification with a non-abusive parent. SIJS only requires the state court to find one parent abusive. Over time it may become clear that one parent was acting abusively towards their child and spouse. Furthermore, reunification is often viewed as the goal in foster care,¹⁷ but that is in tension with SIJS where the goal is to find a pathway for the child to remain in the United States. One way to alleviate this tension would be to allow a person who received SIJS to petition for a non-abusive parent once they turn 21. Although this is not exactly in line with traditional reunification while a child is still under the age of majority, family reunification should be viewed as an important goal outside of this context. An extra process could be put in place, through something like an affidavit, to ensure that the person is petitioning for a non-abusive parent. With this solution, we can move closer to achieving the goals of family reunification while still acknowledging the real concern of providing an immigration benefit to an abusive parent.

Conclusion

Overall, SIJS is a fascinating pathway in the immigration space due to the blend of family and immigration law. This is a powerful way for attorneys to become involved in the immigration world, even if they primarily practice family law. Like many immigration pathways, there are challenges and critiques to the process, yet it remains a strong option for many children.

[1] https://www.uscis.gov/policy-manual/volume-6-part-j-chapter-1; INA 101(a)(27)(J), INA 245(h)

[2] https://www.uscis.gov/policy-manual/volume-6-part-j-chapter-1

[3] https://www.ilrc.org/sites/default/files/resources/sijs-6th-2021-ch_03_final_0.pdf

[4] https://immigrationequality.org/asylum/asylum-manual/asylee-status/#:~:text=It%20is%20only%20after%20an,travel%20back%20to%20their%20countries.

[5] https://supportkind.org/wp-content/uploads/2015/04/Chapter-4-Special-Immigrant-Juvenile-Status-SIJS.pdf

[6] https://www.uscis.gov/working-in-US/eb4/SIJ

[7] https://www.ilrc.org/sites/default/files/resources/sijs-6th-2021-ch_03_final_0.pdf

[8] https://law.lis.virginia.gov/vacode/title16.1/chapter11/section16.1-241/

[9] https://law.lis.virginia.gov/vacode/title20/chapter6.1/section20-124.3/

[10] https://www.vacourts.gov/courtadmin/aoc/cip/programs/gal/home.html

[11] https://law.lis.virginia.gov/vacode/title16.1/chapter11/section16.1-241/

[12] https://projectlifeline.us/resources/state-by-state-analysis/