An Overview

Special Immigrant Juvenile Status

Kristie-Anne Padron

Catholic Charities Legal Services of Miami

kpadron@cclsmiami.org

Christina Wilkes, Attorney

Grossman Law, LLC

Christina@grossmanlawllc.com

What is Special Immigrant Juvenile

Status?

• A federal immigration law that enables certain undocumented children to become lawful permanent residents. (“Green card.”)

• Available only to children who cannot be reunified with one or both of their parents because of abuse, abandonment or neglect.

• Stringent requirements ensure that SIJS is not merely a mechanism for undocumented immigrant children to acquire lawful immigration status.

• USCIS Consent: In adjudicating the SIJS Petition, USCIS must determine that the SIJ benefit was not sought for the primary purpose of obtaining a “green card,” but rather to obtain relief from abuse, abandonment, or neglect.

Federal Authority

•Immigration and Nationality Act (INA) § 101(a)(27)(J), codified at 8

USC § 1101(a)(27)(J).

•Regulation at 8 CFR § 204.11.

•Trafficking Victims Protection and Reauthorization Act (TVPRA) of

2008, Pub. L. No. 110-457, 122 Stat. 5044, Dec. 2008. (Effective

March 23, 2009.) (*Regulations pending.)

Who is a Special Immigrant

Juvenile?

An immigrant present in the United States:

(1) Who is under twenty-one (21) years of age; (2) Who is unmarried; (3) Who has been declared dependent on a juvenile court located in the United States or whom such a court has legally committed to or placed under the custody of an agency or department of: a State, or an individual or entity appointed by a State or juvenile court located in the United States;

(4) Whose reunification with one or both parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law; and

(5) For whom it has been determined in administrative or judicial proceedings that it would not be in the alien’s best interest to be returned to the alien’s or parent’s previous country of nationality or country of last habitual residence.

18 or 21?

• Federal law: 21

• State law: It depends, but typically 18. • Note: Some states, either through legislation or precedential decisions, have expanded

jurisdiction over cases involving Special Immigrant Juveniles to 21. Examples include,

but are not limited to, Massachusetts, New York, New Jersey, Maryland, and California.

Dependent on a “Juvenile Court”?

•A “juvenile court” is a court located in the United States having

jurisdiction under State law to make judicial determinations about the

custody and care of juveniles. • Look at the Court’s function, not what the State labels it.

•TVPRA clarifies that a juvenile court may commit a minor to the care of

State OR individual OR entity, thus guardianships and sole custody

determinations are permissible.

•Note: for immigration, a child is “dependent” once the “juvenile court”

accepts jurisdiction to determine care & custody. • State intervention (ie. foster care) is not required.

“Abuse, Neglect or Abandonment”

“Reunification with one or both parents is not viable due to abuse, neglect or abandonment, or other similar basis in state law.” TVPRA 2008.

Significance of Statutory Language

•These terms are not defined in federal immigration law. Look to local law.

•Abuse, abandonment and/or neglect may have occurred in the US or abroad.

•Child need not be in foster care to be SIJS eligible.

•Child may reside with and be cared for by 1 parent and still qualify for SIJS.

•No formal termination of parental rights is required, nor is a determination that reunification will never be possible.

Practice Pointer: The SIJS order should specifically identify whether abuse, neglect or abandonment or a similar basis in law was the foundation for the determination that reunification with one or both parents was not viable.

“Not in the Child’s Best Interest to

Be Returned to Home Country”

This term is not defined in federal immigration law; look to local law.

Potential Evidence:

• TESTIMONY, affidavits, foreign police reports and/or court records, foreign medical records, foreign home study, etc.

Factors to Consider:

•No adult able or willing to care for the child in home country

•Child would be forced to return to situation of abuse/abandonment/neglect

•Child would be forced to work and would not continue education

•Past threats or injuries by gang members

Establish “Juvenile Court” jurisdiction

Obtain SIJS Predicate Order

from Juvenile Court

• The Process

File Predicate Order along with the I-360 Petition to

USCIS (Some can file I-485 concurrently)

Once USCIS approves the I-360,

file I-485 Application to Adjust Status

Attend Adjustment of Status interview at USCIS Field Office, if req’d, or attend

hearing at Immigration Court

Establishing Juvenile Court

Jurisdiction

How you get into state court will depend on your case and your

jurisdiction. Consider the following types of proceedings:

• Dependency;

• Delinquency;

• Guardianship;

• Custody;

• Emancipation;

• Paternity;

• Registering a foreign custody order;

• Other?

The SIJS Factual Findings Order

Make sure your order is fact-specific!

EXAMPLES: • “Manuel’s father is an alcoholic who physically abused Manuel when he

was drunk and squandered the family’s few assets on vices. Manuel’s father stopped working when Manuel was approximately 12-years-old, causing Manuel to drop out of school after the 6th grade to work as a farmhand. Manuel’s mother is unemployed and unable to protect her children from her husband’s violence.”

• “There is no adult person in Honduras who is able and willing to provide Manuel with a safe and secure home and to ensure that his needs are met. In Honduras, Manuel would be subjected to further abuse and neglect from his parents, and he would have to work full-time in lieu of attending school.”

Application Process: Children NOT

in Removal Proceedings

Concurrently file with CIS’ “Chicago Lock Box” the

following (check www.uscis.gov website):

• Petition for SIJS and supporting documentation (Form I-360

packet)

• Adjustment of Status application and supporting

documentation (Form I-485 packet)

• Application for Employment Authorization and supporting

documentation (Form I-765 packet)

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Application Process: Children IN

Removal Proceedings

• U.S. Citizenship and Immigration Services (CIS) has exclusive jurisdiction over I-360 Petitions for SIJS.

• BUT. . . the Immigration Court has exclusive jurisdiction over adjustment of status for people in Removal Proceedings.

• Thus, for children in Removal Proceedings, the child’s attorney must ask the Immigration Court to repeatedly continue the child’s Removal Proceedings while CIS adjudicates the I-360.

• Once CIS approves the I-360 petition, a child may: • File a Motion to Dismiss Removal Proceedings. If/when the Court grants

this Motion, submit an I-485 application to USCIS. (PREFERABLE) • Alternatively, the child may file for Adjustment of Status before the

Immigration Court.

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What is the I-360?

• Petition for SIJS

• Note: Form is also used to apply for many other Imm.

benefits.

• Formal request for USCIS to classify the child as a “Special

Immigrant Juvenile”

• Approval of the I-360 serves as basis for Adjustment of

Status (“green card”) application

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Completing Application Forms: I-

360

• Form G-28, “Notice of Appearance” of attorney (blue);

• Form I-360, petition for SIJS; • Complete only those parts that apply to Special Immigrant Juveniles.

Remember, this form is used to apply for other immigration benefits, too.

• Supporting Documentation: • Original, certified (or “true test”) copy of SIJS Predicate Order; • Birth Certificate or other proof of age and identity, with certified English

translation; and • Optional: Copy of Child’s Personal Statement submitted to “juvenile

court,” or other evidence of abuse/abandonment/neglect, esp. if judge’s SIJS factual findings order is not detailed.

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What is the I-485?

• Application for Adjustment of Status to that of a Lawful

Permanent Resident (ie. “green card”)

• Purpose: Determine whether any grounds of

inadmissibility exist and overall Lawful Permanent

Resident eligibility.

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What is a ground of

inadmissibility?

• INA § 212(a) sets out all of the bases for which an applicant for a nonimmigrant or immigrant visa may be found ineligible.

• Those which you are most likely to encounter in a SIJS case relate to prior immigration violations, fraud, and criminal activity.

• In SIJS cases, some of these grounds are automatically waived, others require a waiver.

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Inadmissibility grounds from which

SIJS Applicants are EXEMPT

• INA § 212(a)(4) (Public Charge)

• INA § 212(a)(5)(A) (Labor Certification)

• INA § 212(a)(7)(A) (Lack of Valid Entry Documentation)

• INA § 212(a)(6)(A) (Present Without Admission or Parole)*

• INA § 212(a)(6)(C) (Document Fraud and Misrepresentation, including false claim to U.S. citizenship)*

• INA § 212(a)(6)(D) (Stowaway)*

• INA § 212(a)(9)(B) (Unlawful Presence)*

See INA § 245(h)(2).

*The TVPRA added waivers for these grounds of inadmissibility. 18

Inadmissibility Grounds that may

require a discretionary Waiver

• INA § 212(a)(1) (Health related grounds) – Includes those with mental/physical disorders that pose risk to people/property and drug addicts & abusers

• INA § 212(a)(2)(D) (Prostitution or procurers of prostitutes)

• INA § 212(a)(6)(E) (Smugglers) – Includes those who have helped others enter the US illegally

• INA § 212(a)(9)(A) (Aliens previously removed) The authority for discretionary waivers for non-exempted grounds of inadmissibility is found at

INA § 245(h)(2)(B); 8 USC § 1255(h)(2)(B). NOTE: the waiver standard in this section is the same as that for refugees (See INA § 209(c); 8 USC § 1159(c)) – “for humanitarian purposes, family unity, or when it is otherwise in the public interest.”

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Some notes about criminal activity

• Like all other applicants for adjustment of status, SIJ applicants may be inadmissible if they have been convicted of any number of adult offenses, e.g., a crime of moral turpitude and drug related offenses. This analysis is complicated and there may not be any waivers available.

• Juvenile delinquency adjudications and youthful offender adjudications are not

considered convictions for immigration purposes. See Matter of Devison, 22 I&N Dec. 1362 (BIA 2000);

• Some juvenile adjudications, however, may be trigger inadmissibility grounds under

the conduct grounds – watch out for drug offenses, especially drug trafficking! • A history of delinquencies may serve as negative evidence in the discretionary

phase of SIJ adjustment. It must be mitigated by positive equities.

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Completing the I-485

• Form G-28, “Notice of Appearance” of attorney (CIS) or, Form E-28 “Notice of Appearance” of attorney (Imm. Ct.);

• Form I-485 Application for Adjustment of Status; • Attach USCIS Filing Fee of $1140; OR • Form I-912, Request for Waiver of Fees

• Include evidence of unemployment/economic hardship

• Attach 2 color, passport style photographs;

• Attach Form G-325A, Biographic Information, if applicant is 14 or older;

• Attach I-360 Approval Notice;

• Birth certificate or other proof of age and identity, with certified English translation;

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Completing the I-485 Continued

• Form I-693 Medical Exam, completed by CIS approved “Civil Surgeon” (directory on CIS website);

• Form I-765 Request for Work Authorization, if desired, with two passport-style photographs;

• If child has an arrest record, certified copies of the records and dispositions;

• If child is applying for a waiver of a ground of inadmissibility that is not automatically waived, an I-601 together with supporting documentation.

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The Application Process

Medical Exam

• All applicants for Adjustment of Status, regardless of age, must submit an I-693 Medical Exam, in a sealed envelope, completed by a USCIS approved “Civil Surgeon.” • Medical Examinations are valid for a period of one (1) year. Given lengthy I-485

processing times for children from El Salvador, Honduras and Guatemala, consider waiting to file the Medical Exam until USCIS sends a Request for Evidence.

• Doctor will test for certain communicable diseases – TB, syphilis – and ensure vaccines are current.

• Doctors set fees & insurance NOT accepted. (Avg. $200)

• Practice Tip: Discuss drug use with clients prior to the medical exam

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Obtaining Immigration Forms

• Go to: www.uscis.gov FORMS List of all current USCIS forms in PDF.

• READ Form Instructions!!!

• For EOIR (Immigration Court forms) go to: http://www.usdoj.gov/eoir/ EOIR forms “forms download listing.”

• EOIR 28 – Notice of Entry of Appearance (green)

• EOIR 33/IC – Change of Address

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Submitting Forms & Documents

• Submit Immigration forms with original signatures in blue ink.

• Submit original SIJS predicate order.

• Submit photocopies of all other original documents, such as birth certificates, passports.

• Include a certified English translation for all documents not in English.

• Answer ALL QUESTIONS on Immigration forms. LEAVE NOTHING BLANK. WRITE “N/A” or “None” as needed.

• If you need extra space, attach a page with the child’s name and alien registration number (if any) and indicate the question being answered.

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The Application Process

Biometrics

• All applicants for Adjustment of Status and Employment Authorization 14 and over must have Biometrics taken.

• A child who applies for Adjustment with CIS will receive a Biometrics Appointment Notice in the mail, instructing the child to appear at a specified Application Support Center to have his/her Biometrics taken on a specific date and time.

• A child who applies for Adjustment with the Immigration Court will submit a request to have Biometrics taken with the Texas Service Center, and eventually will also receive a Biometrics Appointment Notice in the mail.

• Although Biometrics are not required for I-360 Petitions, CIS sometimes requires them anyway.

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Employment Authorization

• Applicants may request Employment Authorization

Documents (EADs) that permit them to work during the

pendency of their Applications for Adjustment.

• Issued with a validity period of 1 year.

• Typically arrive approx. 60 days after Biometrics.

• With EAD, apply for Soc. Security Card.

• Once individual receives “green card,” it serves as

evidence of employment authorization.

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USCIS Interview

• I-360: typically adjudicated w/o interview (and must be w/in 180 days of filing)

• I-485: USCIS moving away from interviews in many cases

• Conducted by USCIS Adjudications Officer at local District Office

• Conducted in English: USCIS does not provide interpreters. Applicant must provide, if required.

• Conducted under oath, and recorded.

• Scope includes: Contents of USCIS App. Forms, grounds of inadmissibility

• Scope should not include: Basis of SIJS Predicate Order, ie. history of abuse or neglect, reasons child can not return home, etc.

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Post USCIS Interview

• Adjudications Officers have 120 days to render a

decision, which will be sent via mail.

• If approved, Attorney of Record & Applicant receive a

USCIS “Welcome Notice.” Subsequently, Applicant

receives “green card.”

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Employment-Based 4th Preference

(EB-4) Visa Limits Reached

• I-360 – USCIS may approve unlimited number of petitions

• I-485: In Jan. 2017, USCIS going by the “Final Action date” on the Visa Bulletin (SIJS Adjust Status under EB4 Category)

• Per Jan. 2017 Visa Bulletin, USCIS is accepting SIJS based I-485 Apps. for children from all countries EXCEPT: El Salvador, Guatemala, Honduras, Mexico

• Per Jan. 2017 Visa Bulletin, USCIS is processing SIJS based I-485 Applications as follows:

• Mexico, El Salvador, Guatemala Honduras: For cases where I-360 was filed on or before July 15, 2015

• All other countries: Current

• Effect on request for termination of removal proceedings . . .

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SIJS Policy Manual October 2016

For Special Immigrant Juvenile Status (I-360s)

https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume6-PartJ.html

Language broadly prohibits “temporary custody” orders despite varying state dependency and juvenile statutes. If your state has temporary custody laws, be ready to argue in an RFE (Request for Evidence).

For Adjustment of Status (I-485s):

https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume7-PartF-Chapter7.html

Important Resources

•SIJS Manual: https://www.ilrc.org/publications

•SIJS Resources: at www.refugees.org

•SIJS Caseworker’s Toolkit: www.brycs.org/sijs

•LIRS Immigration Benchbook:

https://www.ilrc.org/sites/default/files/resources/2010_sijs_b

enchbook.pdf

•Citizenship and Immigration Services: www.uscis.gov