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, the Legislature wrote 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.”
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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 www.superlawyers.com.
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.
