The number of unaccompanied immigrant children in the United States has increased from 6,775 in 2010 to over 62,000 in 2014 according to the U.S Citizenship and Immigration Services (USCIS). It has been estimated that as many as 150,000-200,000 unaccompanied minors may attempt to cross the border in 2015. Children 12 and under are the fastest growing group of unaccompanied minors.
Contrary to popular belief, most of these children are from Guatemala, Honduras, and El Salvador; the number of children coming into this country from Mexico is actually down. Factors causing children to leave their countries include violence, gangs, crime, abuse, extreme poverty, and a desire to reunite with family in the United States.
An “unaccompanied alien child” is defined by federal law as a child under the age of 18 who has no lawful immigration status in the United States and who has no parent or legal guardian in the U.S.; or, no parent or legal guardian in the U.S. who is available to provide physical care and custody of the child.
Where are these unaccompanied minor children, and how might they come into your courts?
When the children cross the border, they are apprehended by border patrol agents, and they are first detained by the U.S. Department of Homeland Security. All children apprehended are placed in deportation proceedings. The U.S. Department of Health and Human Services’ Office of Refugee Resettlement, or ORR, places the children in shelter facilities that contract with HHS but are licensed by the state in which they operate.
Children who are not deported remain in ORR custody until they can be released to “sponsors,” if one is available; this usually occurs within 30 days. Sponsors can include parents, legal guardians, adult relatives, an unrelated adult or entity designated by a parent or legal guardian, a licensed program, or an adult or entity approved by ORR if no other alternative to long-term detention is available.
More than 80% of these children are reunified with family members, most often a parent. As of January 1, 2014, Indiana had three children in federal foster care, and some 383 children for whom ORR found sponsors in Indiana.
Once ORR places a child with a sponsor, ORR considers its responsibilities terminated. At that point, the sponsor is responsible for the care and safety of the child. If the child becomes the subject of a Child in Need of Services (CHINS) case or a delinquency petition, all further decisions with regard to the placement of the unaccompanied minor child and any services required for the child become the responsibility of the Department of Child Services (DCS) and the juvenile court (unless the child is taken back into ORR custody for some reason).
Immigration court proceedings to deport the child continue even after the minor is placed with a sponsor. By some estimates, as many as 60% of these children may be eligible for some form of legal relief such as asylum, Special Immigrant Juvenile Status (SIJ status), U visas for victims of crime, or T visas for victims of human trafficking.
With the substantial increase of unaccompanied minors entering the United States and being placed with sponsors across the country, it is likely that juvenile courts will see an increase in filings on behalf of unaccompanied minors seeking juvenile court orders specifying the findings required for application for SIJ status. Therefore, it is especially important to understand how SIJ status works, when it is available to unaccompanied minors, as well as the role the juvenile court plays in the process.
SIJ status is a legal status created to protect children who have been abused, neglected, or abandoned by their parents or legal guardians in the United States, although the “qualifying harm” can have occurred in either the child’s home country or in the U.S. SIJ status may allow for these vulnerable children to immediately apply for lawful permanent resident status or a “green card.”
To be eligible for SIJ status, a child must be unmarried, under 21 years of age at the time of filing with U.S. Citizenship and Immigration Services (USCIS), physically present in the United States, and have a qualifying juvenile court order. A child cannot apply for SIJ status without an order from a juvenile court or a probate court, or another court with jurisdiction over the child. The findings entered in the juvenile court order help the USCIS determine if a child is eligible for SIJ status; however, juvenile judges do not grant SIJ status or green cards. Only the USCIS can grant or deny SIJ status.
The role of the juvenile court is to make factual findings based on state law about abuse, neglect, abandonment, family reunification, and the best interests of the child. The issue will usually come before the juvenile court judge by a motion from the child’s attorney, the DCS attorney, or the GAL/CASA for the child requesting the judge issue an order with certain required statutory findings that enable the juvenile to file for SIJ status. In order for the child to be eligible for consideration for SIJ status by USCIS, the juvenile court order must contain the following findings:
- The child must be declared dependent on the court or must be placed by the state court under the custody of either a state agency or an individual or entity appointed by a juvenile court;
- Reunification with one or both of the child’s parents must be deemed not viable due to abuse, neglect or abandonment or a similar basis under state law; and
- The court must determine that it is not in the child’s best interests to be returned to his or her country of origin.
The child is eligible to apply for SIJ status if reunification is not viable with one parent. A child may be eligible to apply for SIJ status if declared dependent due to abuse, neglect, or abandonment by one parent, even if the child is still living with the other parent. Additionally, the abuse or neglect may have occurred in the United States or prior to the child’s arrival in the United States. The federal immigration laws define “juvenile court” as any court having jurisdiction under state law to make judicial determinations about the care and custody of juveniles. A delinquency or guardianship proceeding can also be the basis of an application for SIJ status.
The federal Secretary of Homeland Security, through USCIS, must consent to the granting of the SIJ status and must determine that the juvenile court order was sought primarily to protect the child from abuse, neglect, or abandonment, and not primarily to obtain an immigration benefit. The court order must include the factual basis for the findings on parental reunification, dependency, or custody and best interests. Once a court order including the appropriate findings is issued, the child must complete an SIJ status petition (form I-360) and send it to USCIS before reaching the age of 21. The child must remain under juvenile court jurisdiction until SIJ status has been granted by USCIS.
The DCS attorney, or the GAL/CASA, may want to request that an immigration attorney—or someone with experience in filing SIJ status petitions—represent the child in this process. Children with cases in immigration court must attend all hearings in person while they are applying for SIJ status or they could be ordered deported in their absence. SIJ status is a form of temporary relief with some important benefits like the right to work, but it is not a grant of permanent residency. A child who obtains SIJ status is eligible to apply for legal permanent resident status either concurrently or later. The granting of legal permanent resident status is within the discretion of USCIS and is not guaranteed even if the child has been granted SIJ status.