Page 39 - Impact: Collected Essays on Expanding Access to Justice

non-citizen youth in state foster care programs . State social work agencies testified in Congress about the problem with children who, due to a lack of immigration status, found themselves unemployable, exploited, and possibly homeless when they “aged-out” of state foster care upon their eighteenth birthdays . In 2008, Congress revised the SIJS statute to expand the qualifying criteria to allow children who are not in foster care to be eligible for SIJS .30 This status, which leads to lawful permanent residence and potentially to citizenship, is available to immigrant youth who can demonstrate that they meet the following criteria:
1 . The child is under 21;
2 . The child is unmarried;
3 . The child is “dependent” on a juvenile or family court within the United States, or a court “has legally committed to, or placed [the child] 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”;31
4 . A state juvenile court has made a finding that the reunification with one or both of the child’s parents “is not viable due to abuse, neglect, abandonment, or a similar basis found under State Law”;32 and
5 . In judicial or administrative proceedings “it has been determined...that it would not be in the [child’s] best interest to be returned to the alien’s or parent’s previous country of nationality or country of last habitual residence”[ .]33
If Miguel could find a way to access the state court responsible for matters concerning juveniles, such as the Family Court, he could seek these “special findings” and then file a petition with the USCIS qualifying him for a visa in this SIJS category . But how will he do this?
Unlike the immigration proceeding, where the young person was placed into the administrative court proceeding, the child has no direct way to access the family court . As we explained above, if the family court has jurisdiction over a child to make custody, guardianship, or other placement decisions such as foster care or juvenile delinquency, the child could seek the special immigrant juvenile findings that would later enable the child to seek permanent residence and a termination of the removal proceedings initiated by DHS . But how does the child access the family court? In most states, an adult or a state or local agency must initiate a proceeding and the child is the “subject” of the proceeding . For example, a parent might bring an action to gain custody over a child and would name the child’s other parent as a respondent . Custody proceedings meet the immigration law requirement that the child is “dependent on the family court .”34
30 8 u.S.C. §§ 1101(a)(27)(j), 1232; see William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub. Law 110-457, 122 Stat. 5044 (2009).
31 8 u.S.C. § 1101(a)(27)(i).
32 Id. unfortunately the current agency regulations do not reflect the statutory changes and must be used with care. See 8 C.F.R. § 204.11. For example, this regulation refers to a requirement of foster care or abandonment by both parents; that requirement has been superseded. As of this writing in December 2015, the new agency regulations have not been issued although they have been drafted. Notes based on public presentation by uSCIS to New York County Bar Association (Nov. 18, 2013) (notes on file with authors).
33 8 u.S.C. § 1101(a)(27)(J)(ii). This best interest finding is usually made in the state family court as part of the special immigrant juvenile status findings. See, e.g., New York Family Court General Form 42 (GF- 42) (sample court order with all of the reference elements for the special immigrant juvenile findings), available at Family Court Forms, NYCOuRTS.GOV, https://www.nycourts.gov/forms/familycourt/general.shtml.
34 safe Passage ProJecT, sPecial immigranT JuVenile sTaTus: a sTeP-by-sTeP guide for safe Passage ProJecT VolunTeer aTTorneys 19-21, available at http://www.safepassageproject.org/wp-content/uploads/2013/02/SIJS-Manual- 11.24.2014-CT-FINAL-AMENDED.pdf.
Specific Areas for Reform: Immigration
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