by Erin Jacobsen , Esq .
THE CHILDREN ’ S CORNER
Looking Out for Immigrant Children : What State Court Judges , Family Law Attorneys , and Child Advocates Should Know About Special Immigrant Juvenile Status
Approximately one-quarter of children in the U . S . are children of foreign-born parents . 1 In Vermont , the percentage is smaller , approximately 6 %— or about 7,000 children total — but if current immigration and population trends continue , that number will continue to rise . 2 Of course , these statistics matter little to the individual child , for whom the stakes can be incredibly high . Many immigrant children , especially recent arrivals , are fleeing violence , torture , or abuse in their countries of origin . Once in the U . S ., achieving permanent legal status is paramount to their survival . One of the chief ways abused immigrant children can legalize their status , and thereby find safety and stability , is through the Special Immigrant Juvenile ( SIJ ) program . It is therefore crucial that those working with juveniles understand the SIJ program and how to identify eligible youth .
WHO ARE “ SPECIAL IMMIGRANT JUVENILES ?” -- TWO CASE STUDIES : 3
Roberto At the age of 14 , Roberto ’ s father tried to force him to join his violent drug-trafficking gang in Mexico . Roberto resisted , and for this , his father beat him severely . When Roberto ’ s mother tried to intervene , she too was beaten . Roberto ’ s father swore that if Roberto did not join the gang , both Roberto and his mother would be killed . Roberto and his mother decided to flee to the United States . They snuck across the Rio Grande , but were apprehended at the border . After being held in immigration detention for several weeks , they were released and made their way to Vermont to join Roberto ’ s uncle working on a farm . After living in Vermont for a couple of years , Roberto , now 16 , wants to figure out if he can get his green card so he can stay in the U . S . and go to college .
Fatou
Fatou , age 15 , came to the United Sates from Mali to visit her aunt and cousins for the summer . As the end of her trip neared , she begged her aunt to let her stay , because upon her return home , she would be forced to enter into an arranged marriage . Fatou explained to her aunt that she just wanted to stay in school and eventually go to college . She had never met the man she was to marry . She only knew that he had paid a steep price for her and that he was 40 years her senior . She would be his fourth wife and as the youngest , Fatou would be the primary domestic servant and would be expected to soon bear children . She would face a lifetime of domestic servitude . After Fatou continually begged her aunt to let her stay in Vermont , Fatou ’ s aunt wants to know if Fatou can do this legally .
One way that both Roberto and Fatou could stay in the U . S . legally is by obtaining Special Immigrant Juvenile status . A Special Immigrant Juvenile is :
• an unmarried person under the age of twenty-one who is in the United States ;
• who has been declared dependent by a juvenile court in the U . S , or who has been placed in the custody of an agency or an individual by a state or juvenile court ;
• whose reunification with one or both parents is not viable due to abuse , neglect , abandonment or a similar basis found in state law ; and
• for whom it has been determined in a judicial or administrative proceeding that it is not in the child ’ s best interest to be returned to her / his country of origin . 4
In order for Roberto and Fatou to obtain the status of Special Immigrant Juveniles , they must file petitions with the United States Immigration and Citizenship Services , or USCIS . However , as indicated by the above definition , SIJ cases commence not at USCIS , but in a state “ juvenile court .”
STATE COURTS AND “ SPECIAL FINDINGS ”
The SIJ statutory scheme is a unique federal-state process that directs applicants to first obtain “ special findings ” from their state juvenile court and to then submit those findings with their petition to USCIS . Under this scheme , a “ juvenile court ” is defined as “ any court located in the United States having jurisdiction under State law to make judicial determinations about the custody and care of juveniles .” 5 Therefore , in Vermont , Roberto could request findings from the Family Division in the context of a divorce-related , parentage or other family proceeding filed by his mom , and Fatou could request findings from the Probate Division in the context of a guardianship petition filed by her aunt .
The requisite special findings mirror the definition of a Special Immigrant Juvenile .
For example , in Roberto ’ s case , Roberto could file a motion requesting that in addition to the order granting full parental rights and responsibilities to his mother , the Court also issue the following special findings :
1 . The court has placed Roberto in the full physical and legal custody of his mother ;
2 . Roberto ’ s reunification with his father is not viable due to abuse and neglect ;
3 . It is not in Roberto ’ s best interest to be returned to Mexico .
It is important to note that mere physical custody does not constitute the kind of legal custody required by the agency in order to qualify for SIJ status . Therefore , Roberto ’ s mother would have to obtain both physical and legal rights and responsibilities . It is also essential that in the court filings , Roberto reference not only the legal framework of the SIJ program , but also other reasons for requesting the custody determination . This is because the USCIS has rejected SIJ petitions in cases where it has determined that a guardianship or a custody order was sought solely so the child could receive an immigration benefit .
Finally , it is crucial that the special findings be specific to Roberto . USCIS has rejected petitions that included boiler-plate findings lacking in specificity to the child . Findings that do not reference such details as the child ’ s name , the specific allegations of wrongdoing by the parent ( rather than a vague , all-inclusive reference to “ abuse , abandonment , and / or neglect ”), or the name of the country of origin , could be looked at with skepticism . Furthermore , and whenever possible , courts should also issue a more detailed order that explains how the specific facts of the case indicate abuse , abandonment , and / or neglect under Vermont law and why it is not in the
34 THE VERMONT BAR JOURNAL • SUMMER 2016 www . vtbar . org