Immigrant children have recently been in the news again as the United States Supreme Court issued a decision addressing the Deferred Action for Childhood Arrivals (DACA) program initiated by President Obama. The Department of Human Services v. Regents of the University of California, 591 U.S. _____ (2020). The Trump administration ordered that the program end, but the Supreme Court ruled that the termination of the program was “arbitrary and capricious” and did not comply with the regulations governing administrative procedures. While a reprieve for DACA recipients, the opinion leaves open the option that the Trump administration may still seek to terminate the program in compliance with administrative procedures.
Youth, Rights & Justice works to support many immigrant children and families, some of whom could qualify for DACA, or other types of immigration relief. One less well-known aspect of YRJ’s work is our representation of undocumented immigrant children in juvenile court through a partnership with Immigration Counseling Services (ICS) and other immigration attorneys. Many of these young people are eligible for legal status (Special Immigrant Juvenile Status) in the United States based on their past abuse or neglect.
A fictional yet typical example of the cases we see follows. Fatima is 16 years old and was born in Guatemala. Her mother died when Fatima was 5 years old, and her father abandoned Fatima and her three siblings soon after. Her father has not provided any support or had contact with Fatima since he left. Fatima was raised by an aunt and uncle but worsening poverty and worsening physical abuse caused Fatima to flee her aunt and uncle’s home at age 14 to find work. She attempted to find work in Guatemala City but was exploited and abused while doing domestic work and faced almost daily threats to her safety from gangs. Fatima fled with a group of other young people to seek a better life. She traveled by bus, train, and on foot to eventually arrive in the United States. On arrival at the border, she presented herself to immigration officials and asked for asylum. After being detained in ICE custody she was transferred to the Office of Refugee Resettlement (ORR) and housed in a shelter program once it was determined that she was a minor. Because she had no potential sponsor, she was transferred to the Morrison group home in Portland in September 2019 where she connected with ICS and YRJ.
In 1990, Congress created Special Immigrant Juvenile Status (SIJS) to help certain unaccompanied, undocumented children present in the United States to obtain relief from abuse, neglect or abandonment.1 SIJS is an unusual hybrid form of relief that requires the involvement of both state courts that determine child custody, and the federal immigration system.
When a minor child enters the United States without a parent or guardian in the United States to provide care, they are classified as an “Unaccompanied Alien Child” (UAC). 2 The minor child is then transferred to the care and custody of the federal Office of Refugee Resettlement (ORR). ORR contracts with private agencies to provide placement of unaccompanied minors while they are being detained.3 These agencies determine if the minor has a safe sponsor with whom they can live while the immigration system determines if they qualify for any type of legal relief. If they do not have a sponsor, the minor continues in a placement through ORR.
Morrison Child & Family Services operates several programs in Portland that house unaccompanied minors. Immigration Counseling Services (ICS) has a federal contract to provide “Know Your Rights” presentations to these youth. When a minor discloses abuse, neglect, abandonment by their parents or guardian in their home country, ICS asks YRJ to interview the minor. When YRJ believes that the minor’s situation qualifies for juvenile court jurisdiction under ORS 419B.100, YRJ will file a petition on the minor’s behalf. YRJ files the petition, locates and serves the parents with the petition and prosecutes the petition. Prior to filing, YRJ represents these young people on a pro bono basis.
In order for a child to qualify for SIJS, a state juvenile court must declare the child dependent upon the juvenile court or place the child under the custody of an agency or department of the state, or an individual or entity appointed by a court.4 In order to qualify for SIJS, the child must obtain findings from a juvenile court that they were subject to abuse, neglect, abandonment, or a similar basis under state law.5
Once the state court issues the dependency order and findings, the child may then submit an SIJS petition to the United States Citizenship and Immigration Services (USCIS). 6 If the petition is approved by USCIS, the child may then apply for adjustment to lawful permanent resident status.7
The juvenile court often grants the Department of Human Services custody of these young people. DHS provides them opportunities to continue their education and receive other necessary support. Many of them take advantage of the support of the juvenile court and DHS and move on, against many odds, to graduate from high-school or obtain their GED, attend college, obtain full time employment, and become productive members of society.
Unfortunately, these young people often also experience a gap between receiving necessary supports from the juvenile court and DHS and the immigration relief to which they are entitled. Though many of these clients legally qualify for SIJS, it often takes up to four years for them to obtain a legal work permit, due to delays within the office of the United States Citizenship and Immigration Services. These delays create significant obstacles to success after juvenile court jurisdiction ends at age 21 including a lack of health insurance and an inability to apply for financial aid for college.
Though the many of the children represented by YRJ often would not qualify for DACA, due to the time of their arrival in the US, legal relief options like DACA and SIJS are extremely important and should continue.
1 8 U.S.C. § 1101(a)(27)(j)(i).
2 6 U.S.C. § 279(g)(2).
3 6 U.S.C § 279(a).
4 8 U.S.C. § 1101(a)(27)(j)(i).
5 See, e.g., Angie Junck, Sally Kinoshita and Katherine Brady, Immigration Benchbook for Juvenile and Family Court Judges 17–18 (Immigration Legal Resource Center July 2010), available at https://www.ilrc.org/sites/default/files/resources/2010_sijs_benchbook.pdf
7 8 U.S.C. §§ 1255(a) and (h).