LAWSUIT CHALLENGES TRUMP LIMITATIONS ON SPECIAL IMMIGRANT JUVENILE STATUS (SIJS)
By Christopher A. Kerosky, Esq.
Since the beginning of 2018, the Trump Administration has been rejecting immigration applications from certain immigrants, despite state court orders finding that they were entitled to Special Immigrant Juvenile Status. That Trump policy was the target of a lawsuit filed last year. In October, a U.S. District Court in Northern California issued an injunction preventing the Trump Administration from deporting any immigrant pursuant to this restricted policy.
This Trump policy was directed at certain states like California which passed laws to permit young immigrants to obtain the required status up until their 21st birthday.
What is the Special Immigrant Juvenile Status program?
Special Immigrant Juvenile Status (“SIJS”) is a program that grants legal status to certain minors without parents in the United States and, in some cases, without one parent if they meet certain conditions. Typically this is an application appropriate when a child is in the U.S. as a refugee or else loses a parent through death or other loss. It can be a path to lawful permanent residence in this case that is often a good alternative to lengthy asylum or adoption proceedings.
How does one qualify for SIJS?
In order for a child to qualify for Special Immigrant Juvenile Status, a state juvenile court must appoint a guardian to the youth involved and make initial findings for SIJS related to the child involved. The required findings are as follows:
· The child is “dependent” upon the juvenile court within the meaning of 8 U.S.C. §s 1101(a)27(J) and 8 C.F.R. § 204.11 (a) and (d)(2)(I);
· The child is “eligible” for long term foster care” due to abuse, neglect or abandonment within the meaning of 8 U.S.C. §1101(a)27(J) and 8 C.F.R. §204.11 (a) and (d)(2)(I); and
· it is not the “best interest” of the child to be “returned to her country of origin” within the meaning of 8 U.S.C. § 1101(a)27(J) and 8 C.F.R. § 204.11 (a) and (d)(2)(I).
How does one apply to Immigration for SIJS?
Once the state court order with the factual findings required is obtained through the state Court, the child can apply for Special Immigrant Juvenile Status (SIJS) with the U.S. Citizen and Immigration Service (“USCIS”). See 8 C.F.R. § 204(d). The USCIS has discretionary authority to approve or deny the child ’s application.
This petition generally is made with supporting documentation highlighting the child’s abandonment by his or her parents and status as a dependent of the state, as well as the interest in the child not returning to his or her country of origin.
Once the CIS grants Special Immigrant Juvenile Status (“SIJS”), the last step is an application package submitted to obtain the child permanent residence. This involves a large packet of application forms, medical examination, photos and related application materials. The process culminates in an interview of the applicant and any caretakers at the Immigration Service (CIS) office.
Change in state law prompted this Trump policy.
In 2015, the California Legislature changed existing law to allow courts to appoint guardians for people 18 to 20 years old for the purpose of applying for SIJS. In approving the bill, that it was “particularly necessary in light of the vulnerability of this class of unaccompanied youth, and their need for a custodial relationship with a responsible adult as they adjust to a new cultural context, language, and education system, and recover from the trauma of abuse, neglect, or abandonment.”
CHRISTOPHER A. KEROSKY of the law firm of KEROSKY PURVES & BOGUE has practiced immigration law for over 25 years. He graduated from University of California, Berkeley Law School and was a former counsel for the U.S. Department of Justice in Washington D.C.
Mr. Kerosky has been recognized as one of the top lawyers in Northern California for 9 years by “Super Lawyers” Magazine. See .
WARNING: The article above is not intended to be a substitute for legal advice. We recommend that you get competent legal advice specific to your case.