Help for Children in Need of Legal Status

By Attorneys Rafael Torres, III & Nancy E. Miller

Children who come to the United States unaccompanied are among the most vulnerable types of persons to arrive in the United States. These children are sometimes all alone and often have suffered mistreatment or abuse in their home country, which prompts them to take the extraordinary risk of traveling to the United States without an accompanying adult or parent.

About 15 years ago, Congress drafted legislation which led to the creation of Special Immigrant Juvenile Status (“SIJS”) as an avenue to United States Citizenship for unaccompanied children. About 8 years later, the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (“TVPRA”) was enacted, which provided additional protections for unaccompanied children, including expanded qualifications for SIJS.

In order to qualify for SIJS, the child must be under 21 years of age and must be physically present inside the United States at the time of filing, cannot be married (either at the time of filing or at the time a decision is made on the child’s application), and must have an order from a state court in the United States with the following findings: 1) that the child is a dependent of the court or was legally placed in the custody of a state agency, private agency, or a private person; 2) that it is not in the best interest of the child to be returned to their home country; and 3) that the child cannot be reunited with 1 or both of the child’s parents due to abuse, neglect, abandonment, or similar basis under state law. If the child is granted SIJS, the child is immediately eligible to adjust to Lawful Permanent Resident Status, as well receive employment authorization, and eventually may apply to become a Citizen of the United States.

Securing the state court order is a complicated process, but one that can be managed by a knowledgeable and experienced immigration attorney. The process can become especially complicated if the child is able to reunite with one of his or her parents, but not the other, or if one of the parents is deceased. As the rules indicate, the child only has to show that reunification with one parent is not viable.

However, some courts have been reluctant to issue the needed order if a child is living with one of his or her parents and the other parent is deceased. This situation is commonly referred to as “Single-Parent Special Immigrant Juvenile Status.” Just a few months ago, the California Court of Appeal issued a decision in the case of Eddie E. v. Superior Court, in which the Court found that a parent’s death in and of itself does not disqualify the child from seeking SIJS. The Court clarified that the relationship between the deceased parent and child prior to the parent’s death should be reviewed. Ultimately, the Court found that if a parent abandoned their child prior to the parent’s death, the parental abandonment of the child does not end with the parent’s death, but is instead cemented as the ultimate form of abandonment. It is important to note that if the child is granted SIJS, the child will never be able to enter a petition as an immediate relative of the other parent.

An unfortunately common scenario is the following. A mother gives birth to a child, and the father abandons both mother and child shortly thereafter. The single mother leaves her home country to come to the United States in order to seek opportunities to provide for her child. The father dies, cementing his abandonment of his child forever. The child then eventually travels to the United States to reunite with the mother. In this basic scenario, the child would likely be able to establish that reunification with one of his parents is not viable due to abandonment and neglect despite the fact that the father is deceased.

There are many other scenarios which would allow a child to qualify for SIJS. In order to find out if a child you know may be qualified to seek SIJS, consult with a knowledgeable and experienced immigration attorney.