Special Immigrant Juvenile Protection

Posted on 07/10/19

What is Special Immigrant Juvenile Protection?

  • Also abbreviated SIJ or called Special Immigrant Juvenile Status (SIJS) is a federal law that helps to protect undocumented children and youth who are in state custody (up to ages 18-21) to gain legal access to permanent residency and later citizenship if they are deemed to be abandoned or abused by at least one parent and would be better served by not returning to their home country.

Where does the base for this visa come from?

  • Immigration and Nationality Act at 203(b)(4) which allocates a certain percentage of visas to individuals considered “special immigrants”

What are the benefits of SIJS?

  • Child can apply for permanent resident status without the assistance of a parent who may be abusive or has abandoned the child. This status will protect the child from returning to their home country which may be dangerous to their physical or emotional well being.
  • Those who apply for SIJS and are granted permanent residency will be able to legally live and work permanently in the United States and will be allowed to travel in and out of the country, as well as prepare to apply for citizenship. Youth may also be entitled to certain benefits such as Title IV-E, which would provide funds and resources to go to college.

Who can apply for SIJS?

  • There are four main criteria for minors who wish to apply for SIJS protection:
  • Juvenile court proceedings
    • The individual must be a dependent of the juvenile court or be placed under the custody of an agency, department, or individual by the court system. The name of the court the child is dependent on is not important so long as the court has the proper jurisdiction to handle juvenile affairs.
      • Examples: Children in DCF, children in juvenile detention, children in ICE, children who are living with extended family members are all eligible.
    • The juvenile court must find that reunification with one or both parents is not viable. There must be a formal termination of parental rights or a determination that reunification with one or both parents will never be possible. However, the use of the language “one or both” parents is significant because the child does not have to terminate their relationship with both parents. They can remain in the custody and care of one parent in the United States and still seek SIJS status.
    • Due to abuse, neglect, abandonment or similar basis under state law. The court must make it clear that reunification with one or both parents is not viable due to abuse, neglect, abandonment, or a similar basis under state law. The child cannot be seeking SIJS status for the sole purpose of lawful immigration or for some other reason. This abuse, neglect, or abandonment does not have to take place in the US, but must be significant enough that the child has no hope of being reunified with the parent. The child also does not have to levy formal charges of abuse, neglect, or abandonment against the parents in order for the SIJS status.
    • The court or administrative agency must determine that it is not in the child’s best interest to be returned to their home country. Both the downsides of the child returning to their home country and the advantage of staying in the US are relevant.
      • Factors may include: family and friend support systems in the US, the child’s emotional and physical well being, and access to medical and educational resources that the child may require.
  • In addition, the child must be under the age of 21. Any person who is under the age of 21 is eligible, but this process is extremely difficult for those who are between the ages of 18-21, as some state laws do not allow children over 18 to be in state custody. It is important to receive an SIJS finding before the child turns 18.
  • The child must also remain in juvenile court jurisdiction until the entire immigration process is complete. This means that the child should remain in juvenile court until their permanent residency application is approved. It is important to handle these cases as quickly as possible so the child does not age out of juvenile court.
    • If retaining jurisdiction in juvenile court is not possible due to age, request specific language from the judge explaining the circumstances. The TVPRA prohibits a denial based on lack of continuing juvenile court jurisdiction due to age.
  • The applicant also cannot be married at the time they submit their application. Applicants who are divorced or have children are allowed, but not who are currently married.
  • Children who have a record of involvement with drugs, prostitution, smuggling, or other crimes, or who have been previously deported or have other “bad marks” may have a harder time receiving SIJS or permanent resident status. All SIJS applicants must fulfill all the requirements to get a green card.

How can a client begin the SIJS process?

This process will look slightly different depending on whether the child is applying affirmatively (not in removal proceedings) or defensively (currently in deportation hearings).

Affirmative case:

  • Step 1: Eligible candidates will already be in state custody in some manner. The court will need to make a finding that the child has been neglected, abused or abandoned for the child to be eligible. The judge who makes these findings should sign an order affirming these findings for the child’s application. After meeting the four sets of criteria listed above, they will be eligible to submit an application for Special Immigrant Juvenile Status.
  • Step 2: The child will be taken for biometrics at an application support center, and the FBI will do a background check into any criminal or juvenile records. TVPRA mandates that USCIS adjudicate SIJS petitions within 180 days. At the same time, the child will need to apply for permanent residency.
  • Step 3: Once these applications are received, they will be reviewed by the court and a determination will be made to deny, interview, or accept the petition. If the petition is denied, the child may be subject to deportation. Children who are old enough may be contacted for an interview before their application is accepted. Typically, children under 14 will not need to interview. At the same time, the child will be issued an NTA, placing the child in removal hearings. The child cannot appeal the denial of the adjustment of status application. It can only be renewed before the immigration court.

Defensive case:

  • Many of the steps here are similar, except for that the child does not file their SIJS and permanent residency applications together. The SIJS application will be filed to USCIS and the adjustment of status application will go to the immigration judge. Adjudication of the SIJS application must happen within 180 days, however that deadline is rarely met. The immigration judge alone has the power to grant or deny the child’s application.
  • If the judge will terminate the child’s removal proceedings upon filing or approval of the child’s SIJS petition, then the child may proceed with an affirmative application before USCIS, which will be less adversarial than immigration court. The attorney will want to request that ICE either join or not to oppose the motion to terminate.

Important to note:

  • There are two types of consent to the grant of SIJS.
    • The first requires that Homeland Security consent to grant SIJS on the knowledge that the primary reason for seeking a status change is to escape abuse and not to immigrate.
    • Children who are deemed “unaccompanied” or are in the custody of HHS, ORR, or DCS need specific consent from ORR,
  • Children who are granted SIJS status are no longer considered to be “children” of their parents. Part of this status is to protect children from abusive parents, and children granted to SIJS are not in the custody of their parents, but are instead in the custody of the state.
    • This will also help to prevent abusive or neglectful parents from attempting to use their child’s permanent residency status as a means of applying for a status change as well.
    • Unfortunately, this also prevents siblings from using this status as a means of applying for SIJS, as legally they are not considered “siblings”. A sibling is defined as someone with a common parent, and under SIJS, the applicant does not belong to those parents any more. However, the sibling may be eligible to apply for SIJS on their own.
  • By filing for SIJS, you will be alerting ICE that the child is undocumented, and should the petition fail, ICE may serve them with a deportation order. SIJS orders are not confidential, so it is crucial to make sure that the child is likely to gain SIJS before submitting the application packet. SIJS is a wonderful opportunity to gain residency, but may have notable consequences for the child if the application is denied. Children who are already in ICE care and subject to deportation meetings can still apply for SIJS, but the timeline can be difficult due to deportation hearings.
  • Children who are not SIJS eligible may be eligible for other visas, such as a U-visa or through VAWA

Current Dilemmas for SIJS Applicants:

  • Due to the Trump administration crackdown on immigration, SIJS is increasingly more difficult to obtain, USCIS is taking longer to process applications, and more children are being subject to denial and deportation than they are to permanent residency.
  • Recent shifts have also started to reduce the age limit for when children can qualify. The age gap between 18 and 21 has been very seriously contested for a long time, and New York has just banned those over 18 from being eligible to apply for SIJS. In addition, those who are over 18 and have been appointed guardians are also not considered to be in state custody, and are therefore ineligible.

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