Special Immigrant Juvenile Status and Other Immigration Options for Unaccompanied Children

Legal Background Children who come into the U.S. from other countries without a guardian are called unaccompanied alien children (UAC). UAC defined: A child who has no lawful immigration status in the U.S.; has not attained 18 years of age; and, with respect to whom, there is no parent or legal guardian in the U.S., or no parent or legal guardian in the U.S. available to provide care and physical custody. 6 U.S.C. § 279(g)(2).

Legal Background Unaccompanied children enter the U.S. immigration system when they are apprehended by the Department of Homeland Security (DHS). Subsidiary agencies of DHS include Customs and Border Protection (CBP), Immigrations and Customs Enforcement (ICE), and the U.S. Coast Guard.

Legal Background Under the Homeland Security Act of 2002, Congress transferred the care and custody of unaccompanied children from the former Immigration and Naturalization Services (INS) to the U.S. Department of Health and Human Services. Child welfare based model of care v. adult detention model See Office of Refugee Resettlement. (2016). Unaccompanied Children's Services [Fact sheet]. Retrieved from https://www.ach.hhs.gov/sites/default/files/orr/orr_uc_updated_fact_sheet_1416.pdf.

Legal Background The Trafficking Victims Protection Reauthorization Act of 2008 expanded the responsibilities of the U.S. Department of Health and Human Services and required that each child must be placed promptly into the least restrictive setting that is in the best interest of the child. 8 U.S.C. § 1232(c)(2). Also mandated that children be allowed to retain legal counsel and petition for the right to stay in the U.S. at an immigration hearing. 8 U.S.C. § 1232(c)(5).

Office of Refugee Resettlement Within the U.S. Department of Health and Human Services, the Office of Refugee Resettlement (ORR) is responsible for providing care to children referred by immigration authorities. The majority of the children are cared for through a network of state-licensed, ORR-funded care providers. The average length of stay for children in an ORR program in 2015 was 34 days. If a family member or other acceptable caregiver for the child is located, the ORR will release the child into that person’s care. See Office of Refugee Resettlement. (2016). Unaccompanied Children's Services [Fact sheet]. Retrieved from https://www.ach.hhs.gov/sites/default/files/orr/orr_uc_updated_fact_sheet_1416.pdf.

State of Florida Programs and Services Visit the link below to find agencies and organizations providing services to unaccompanied children in your area. http://www.acf.hhs.gov/orr/resource/state-of-florida-programs-and-services-by-locality

Legal Relief How can an unaccompanied child stay in the U.S. legally?

Special Immigrant Juvenile Status Provides lawful permanent residency to children who are under the jurisdiction of a juvenile court and cannot be reunified with one or both parents due to abuse, neglect, or abandonment. See Immigrant Legal Resource Center. (2013). Immigration Options for Undocumented Immigrant Children, p. 1. Retrieved from https://www.ilrc.org/sites/default/files/documents/ilrc-immig_options_undoc_children-2013-07.pdf.

Benefits Can work after receiving a work permit Can travel outside of the United States after obtaining residency Can receive some forms of public aid Can apply for citizenship after turning 18 and after having residency for 5 years If granted SIJS, you cannot submit an application to help parents receive immigration status See National Immigrant Justice Center. (2013). Special Immigrant Juvenile Status [Fact sheet]. Retrieved from http://immigrationjustice.org/sites/immigrantjustice.org/files/SIJS%201pg_eng%2010.2013.pdf.

Eligibility Requirements Defined by the Immigration and Nationality Act (INA) § 101 (a)(27)(J) Amended by the Trafficking Victims Protection Reauthorization Act of 2008 Be aware that statutory changes may supersede portions of 8 C.F.R. 204.11.

Who is eligible? The applicant or subject of the application must be: Under 21 years of age Unmarried Located within the United States With a qualifying juvenile order See Immigration and Nationality Act (INA) Section 101 (a)(27)(J).

Consent “[N]o juvenile court has jurisdiction to determine the custody status or placement of an alien in the custody of the Secretary of Health and Human Services unless the Secretary of Health and Human Services specifically consents to such jurisdiction.” Please note that consent is not required if the juvenile has already been released from the Office of Refugee Resettlement custody. See 8 U.S.C. 1101 (a)(27)(J); see also http://www.acf.hhs.gov/orr/resource/unaccompanied-childrens-services.

Obtaining Consent If custody or placement of the juvenile will be altered: Request for Specific Consent to Juvenile Court Jurisdiction (ORR C-1) – Specific Consent Form Email to: DUCSconsent@acf.hhs.gov If custody or placement will not be altered from the placement chosen by the Office of Refugee Resettlement: Specific consent is not needed from HHS. See http://www.acf.hhs.gov/orr/resource/unaccompanied-childrens-services; see also https://www.uscis.gov/green-card/special-immigrant-juveniles/eligibility-sij-status/eligibility-status-sij

Under 21 years of age This requirement was modified by the passage of the Trafficking Victims Protection Reauthorization Act of 2008, Pub. L. 110-457. The applicant or subject of the application for Special Immigrant Juvenile Status must be under 21 at the time of filing of the I-360, Petition for Amerasian, Widow(er), or Special Immigrant. Additionally, the juvenile court order must also be obtained before the child ages out of that particular juvenile court’s jurisdiction. See U.S. Citizenship and Immigration Services, https://www.uscis.gov/green-card/special-immigrant-juveniles/eligibility-sij-status/eligibility-status-sij and TVPRA 2008.

Florida Specifics Dependency must be established before the age of 18. However, Chapter 39.5075(6) allows the Court to retain jurisdiction over a dependent child who may be eligible for Special Immigrant Juvenile Status until the age of 22, “solely for the purpose of allowing the continued consideration of the petition and application by federal authorities.”

Unmarried The term “unmarried” means an individual who at such time is not married, whether or not previously married. Divorce, death of a spouse, or annulment are not barriers to eligibility. Proof of the change of marital status may be required. The applicant must remain unmarried until he or she becomes a permanent resident or SIJS may be automatically revoked. See 8 U.S.C. 1101(a)(39); see also 8 C.F.R. 205.1(a)(3)(iv)(B).

Qualifying Juvenile Court Order “(i) 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, and whose reunification with 1 or both of the immigrant's parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law.” “(ii) 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.” See INA (a)(27)(J).

Qualifying Juvenile Court Order Must include findings that: The child is a dependent of the court or legally placed with a state agency, a private agency, or a private person; The child cannot be reunited with one or both parents because of abuse, abandonment, neglect, or similar reason under state law; and It is not the child’s best interests to return to his or her home country. See U.S Citizenship and Immigration Services Special Immigrant Juvenile Status: Information for Juvenile Courts https://www.uscis.gov/sites/default/files/USCIS/Green%20Card/Green%20Card%20Through%20a%20Job/Information_for_Juvenile_Courts_-FINAL.pdf. For general questions state juvenile courts and child welfare agencies may contact the U.S. Citizenship and Immigration Services at USCIS-IGAOutreach@uscis.dhs.gov.

Florida Specifics Before the juvenile reaches 18: Dependency must based on allegations of abuse, neglect, or abandonment; Reunification with one or both parents is not appropriate; It is not the best interest of the juvenile to be returned to his or her home country; Ruling of the court must include findings as to the express wishes of the child, if able, and any appropriate circumstances that would affecting the best interests of the child; and The juvenile remains under the juvenile court jurisdiction. See Chapter 39.5075

Florida Specifics After the Court makes findings of eligibility: The I-360, Petition for Amerasian, Widow(er), or Special Immigrant should be filed within 60 days. Review hearings regarding the status of the petition and application should be held. Jurisdiction terminates upon the final federal decision but no later than the child’s 22nd birthday. See Chapter 39.5075

Other Forms of Legal Relief Violence Against Women Act (VAWA) U Visa (U Nonimmigrant Status) Trafficking Visa (T Nonimmigrant Status or T Visa) Asylum Temporary Protected Status (TPS) Family Visas Conditional Permanent Residence Deferred Action for Childhood Arrivals (DACA)

Violence Against Women Act Permits certain abused family members of U.S. citizens or permanent residents to self-petition for a green card without the cooperation of the abuser. A child can receive VAWA benefits even if he or she was not abused, as long as the child’s parent qualifies for VAWA due to abuse. See Immigrant Legal Resource Center. (2013). Immigration Options for Undocumented Immigrant Children, p. 2. Retrieved from https://www.ilrc.org/sites/default/files/documents/ilrc-immig_options_undoc_children-2013-07.pdf.

U Visa For noncitizens who are victims of serious crimes and can be helpful in the investigation or prosecution of those crimes. See Immigrant Legal Resource Center. (2013). Immigration Options for Undocumented Immigrant Children, p. 3. Retrieved from https://ilrc.org/sites/default/files/documents/ilrc-immig_options_undoc_children-2013-07.pdf.

Trafficking Visa For noncitizens who have been the victims of severe forms of human trafficking. See Immigrant Legal Resource Center. (2013). Immigration Options for Undocumented Immigrant Children, p. 4. Retrieved from https://www.ilrc.org/sites/default/files/documents/ilrc-immig_options_undoc_children-2013-07.pdf.

Asylum For noncitizens who fear persecution in their home country because of their race, religion, nationality, political opinion or membership in a particular social group. A person granted asylum can petition for his or her spouse or children to enter as asylees. See Immigrant Legal Resource Center. (2013). Immigration Options for Undocumented Immigrant Children, p.5. Retrieved from https://www.ilrc.org/sites/default/files/documents/ilrc-immig_options_undoc_children-2013-07.pdf.

Temporary Protected Status For noncitizens from certain countries that have experienced devastating natural disaster, civil war or other unstable circumstances. Provides temporary permission to stay in the U.S. Provides temporary work authorization. Noncitizen only needs to prove that he or she is a national of a current TPS designated country and has been in the U.S. since a required date. See Immigrant Legal Resource Center. (2013). Immigration Options for Undocumented Immigrant Children, p. 6. Retrieved from https://www.ilrc.org/sites/default/files/documents/ilrc-immig_options_undoc_children-2013-07.pdf.

Family Visas Some noncitizens may be able to immigrate legally through a U.S. citizen or lawful permanent resident family member. They may qualify as immediate relatives . Spouse, unmarried child under 21, or parent (if son or daughter is 21 or older) of a U.S. citizen. Can immigrate quickly. They may qualify to immigrate through preference categories. Sons or daughters of U.S. citizens who are married or over the age of 21; spouses and unmarried sons and daughters of permanent. residents; and siblings of U.S. citizens where the citizen is 21 or older. May have to wait up to several years to immigrate. See Immigrant Legal Resource Center. (2013). Immigration Options for Undocumented Children, p. 7. Retrieved from https://www.ilrc.org/sites/default/files/documents/ilrc-immig_options_undoc_children-2013-07.pdf.

Conditional Permanent Residence For noncitizens who have immigrated through a spouse within the first two years of the marriage. Because of immigration processing times, this is effectively only available to the spouses of U.S. citizens. Provides 2 years of resident status in the U.S. that may be extended to lawful permanent residence. See Immigrant Legal Resource Center. (2013). Immigration Options for Undocumented Immigrant Children, p. 8. Retrieved from https://www.ilrc.org/sites/default/files/documents/ilrc-immig_options_undoc_children-2013-07.pdf.

Deferred Action for Childhood Arrivals A form of prosecutorial discretion that provides a work permit and relief from removal for two years to certain eligible undocumented youth. Protects the youth from being placed into removal proceedings and from being removed. See Immigrant Legal Resource Center. (2013). Immigration Options for Undocumented Immigrant Children, p. 9. Retrieved from https://www.ilrc.org/sites/default/files/documents/ilrc-immig_options_undoc_children-2013-07.pdf.