Summer 2015: The Role of a Family Law Attorney in Special Immigrant Juvenile Petitions

By Elizabeth Silvestri

Every year, large numbers of unaccompanied minors flee their homes in other counties to come to the United States.  In the last fiscal year alone, 53,500 unaccompanied minors entered the United States.1  Many of these children come from high crime, poverty stricken cities in countries such as El Salvador, Honduras, and Guatemala.2   Once in the United States, these children have the option of obtaining special immigrant juvenile status (SIJ).  SIJ status is a mechanism for children who have suffered abandonment, abuse, or neglect to obtain legal citizenship.3 Uniquely, the granting of this status requires the authority of state family or juvenile courts as well as the United States Citizenship and Immigration Services (USCIS), thereby lending itself to cooperative work between an attorney practicing family law and an attorney practicing immigration law.  

SIJ status was created in 1990 through the Immigration and Nationality Act (INA). Within the INA, Congress created a classification, referred to as special immigrant juvenile, for noncitizen minors who wished to remain permanently in the United States but who lacked parents that could provide for them.  The relevant portion of the statute was amended in 1997 to require that the minor child be deemed eligible for long-term foster care specifically due to abuse, neglect, or abandonment. The William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 further amended the eligibility requirements for SIJ status.  This Act eliminated the requirement that the child be found eligible for long-term foster care.  Instead, the state court that had authority over the child must simply find that “reunification with one or both of the children’s parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law.”4 

The attainment of SIJ status requires approval of such status by the USCIS.  Prior to applying to the USCIS for such status, however, a state court that has competent jurisdiction to make determinations about the care and custody of juveniles as well as jurisdiction over the minor must make specific findings.  The specific findings are that the child is dependent upon the state court for his care and protection or the court has legally committed or placed the child under the custody of an individual appointed by the court; reunification of the child with one or both parents is not viable due to abuse, neglect, abandonment, or similar basis found under state law; and it is not in the child’s best interests to return to his country of origin.5 Only once the court issues a signed order stating the child meets the requirements for SIJ status may an application be filed with the USCIS for classification as a special immigrant juvenile.

To satisfy the first finding, a minor is considered “dependent” on the court if he “has been the subject of judicial proceedings or administrative proceedings authorized or recognized by the juvenile court.”6 An attorney should look to the circumstances of the individual case to determine which type of petition should be presented to which court.  If the minor is without the care of either parent but someone else is available to act as the minor’s guardian, the attorney should file an action to appoint a guardian for the minor in the proper Probate and Family Court pursuant to M.G.L. c. 190B § 5-201 through § 5-212.  If the minor is without the care of either parent and there is no one else available to act as the minor’s guardian, the attorney can file a care and protection petition in Juvenile Court pursuant to M.G.L. c. 119, § 24.  For those children who are over the age of eighteen but under the age of twenty-one, the attorney can file a complaint in equity with the proper Probate and Family Court. While not always accepted, some judges have approved these types of complaints for purposes of SIJ applications.

To satisfy the second finding, the attorney must only show that reunification with one of the minor’s parents is not viable due to abuse, neglect, abandonment or another similar basis under state law.  Therefore, even if the minor is living with one of his parents, he can still successfully obtain the special findings necessary for a SIJ application if it is shown that reunification with the other parent is not viable.  Additionally, the attorney must only demonstrate in the petition that reunification with one parent is not viable due to either abuse or neglect or abandonment (not all three).  It is crucial to point out that the state court is not making any decisions regarding the eligibility of the minor for classification as a special immigrant juvenile but rather the attorney is just asking the court to decide whether the minor suffered abuse, neglect, or abandonment that was to such a degree that reunification with at least one parent is not viable.   

For the third and final finding, the attorney should highlight any and all factors showing that the return of the minor to his native country is not in his best interest.  The INA does not specify what factors courts are to use in making this determination.  Rather, the courts are expected to ground this determination in applicable state law.  The court may consider not only the level of abuse, abandonment, or neglect that the minor will suffer if returned to his country of origin but also the minor’s emotional needs, medical needs, and educational needs.  If there is no parent or family member in the minor’s country of origin that can provide adequate care and protection for the minor, it is not in the best interest of the minor to return there.

Once the attorney has obtained a signed court order making these special findings, a SIJ petition on behalf of the minor can be filed with the USCIS.  At this time, the family law attorney’s role has concluded and the immigration attorney’s role can begin.  Although the attainment of a court order of these special findings does not alone provide the minor with SIJ status, it is a crucial part of the SIJ process.  In this way, attorneys practicing family law can play a vital role in helping children who have suffered abuse, neglect, and abandonment in their own countries get the chance to lead safe and productive lives here in the United States.
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1 Victor Manuel Ramos, Report:  More Unaccompanied Minors on the Way into the U.S., NEWSDAY (April 8, 2015, 9:33 PM), http://www.newsday.com/news/nation/report-more-unaccompanied-minors-on-the-way-into-u-s-1.10218313.
2 See id.
3
Emily Rose Gonzalez, Battered Immigrant Youth Take the Beat:  Special Immigrant Juveniles Permitted to Age-Out of Status, 8 Seattle J. for Soc. Just. 409, 410 (2009).
4
8 U.S.C. § 1101(a)(27)(J).
5
8 C.F.R. § 204.11(c).
8 C.F.R. § 204.11(c)(6).


Elizabeth Silvestri is a graduate of Boston College (2012) and a graduate of Suffolk University School of Law (2015). She has worked as a Summer Associate for Collora LLP and a Law Clerk for the Law Offices of Adrienne J. Vaughan LLC. She hopes to practice family law upon passing the Massachusetts Bar.