Representing Unaccompanied
Immigrant Children
for Special Immigrant Juvenile Status
National Immigrant
Justice Center
Kirkland & Ellis LLP
December 16, 2008
National Immigrant Justice Center
The National Immigrant Justice Center, a partner of
Heartland Alliance for Human Needs & Human
Rights, provides direct legal services to and
advocates for immigrants, refugees, and asylum
seekers through policy reform, impact litigation,
and public education.
Overview of Immigration System for
Unaccompanied Immigrant Children
Alexandra Fung, Staff Attorney
National Immigrant Justice Center
Immigration Children’s Protection
Project
• NIJC has been serving unaccompanied immigrant
children since 1995 through its Children’s Project.
• With the help of pro bono attorneys, NIJC’s
Children’s Project screens and provides
representation to all unaccompanied immigrant
children detained in Chicago.
• NIJC also provides some representation to nondetained immigrant children in the Chicago area
Who are the Children?
•
•
•
•
Unaccompanied immigrant children;
In federal custody & not in federal custody;
From around the world;
Detained in IL or residing in IL, IN, MI, and
WI.
Definition of an Unaccompanied
Immigrant Child
• Under 18 years of age;
• No lawful immigration status in the U.S.;
• No parent or legal guardian in the U.S.
available to provide care and physical
custody.
6. U.S.C. §279(g)(2)
Child arrested
DHS
Where is the child living?
What is happening in
the immigration case?
DOJ: EOIR
ORR
Immigration Court
Detention
Facility
Release to
relative
Return to
home
country
Board of
Immigration
Appeals (BIA)
Place in ORR
foster care
facility
Federal Circuit
Court of Appeals
Individuals Encountered by a Detained Child
• Department of Homeland Security
– U.S. Customs and Border Patrol (CBP)
– U.S. Immigration and Customs Enforcement (ICE)
• Shelter staff
– Assist with family reunification
– Provide some counseling
– Very limited confidentiality (mental health)
• Child Protection Advocate
– Friend to child
– No confidentiality
• ORR Field Specialist (FS) and Field Coordinator (FC)
– ORR FS is representative of ORR
– ORR FC liaising b/w shelter and ORR
– No confidentiality
• Attorney
Special Immigrant Juvenile Status
Manoj Govindaiah, Supervising Attorney
National Immigrant Justice Center
Special Immigrant Juvenile Status
(SIJS)
Immigration status for children who have
been:
– abused,
– abandoned and/or
– neglected
SIJS Eligibility
•
•
•
•
Under 21
Unmarried
Abused, abandoned, or neglected by parents
Dependent on juvenile court
8 U.S.C. § 1101(a)(27)(J); 8 C.F.R. § 204.11(c);
58 FR 4280, Aug. 12. 1993
Hypo
V. is a 16 year old girl that grew up in a rural village in
Guatemala. An only child, V.’s mother died while giving
birth to her, and her father died when she was five years
old. V. lived with her only living relative, her
grandmother, until the grandmother passed away in June
2007. At that point, V. was 15 years old, and had no one to
care for her. With no other choice, V. traveled to the
United States, hoping to reunite with her godmother. V. has
no relatives in Guatemala or in the United States.
Four Steps to Obtaining SIJS
1. Specific Consent*
2. Dependency on a Juvenile Court
3. Express Consent
4. Lawful permanent residency (LPR)
* Following Perez-Olano v. Gonzales, No. 05-03604 (C.D. Cal. Jan.
8, 2008), specific consent may no longer be required.
Are all four steps required?
If your child is:
• Detained
– All four steps, consecutively
• Non-detained but in Immigration Court
– Steps 2-4, consecutively
• Non-detained and not in Immigration Court
– Step 2, Steps 3-4 concurrently
Step 1: Specific Consent
• Prior to Perez-Olano v. Gonzales, children in actual or
constructive federal custody required specific consent from
DHS/ICE in order to proceed into state court for a
dependency finding. [8 U.S.C. § 1101 (a) (27)(J)(iii)(I)]
• Jurisdictional grant by the DHS/ICE to the states for the
specific or limited purpose of a dependency proceeding.
• Request made upon the Director of the Juvenile and
Family Residential Management Unit/DHS/ICE in D.C.
Perez-Olano v. Gonzales
Perez-Olano: When state court’s role is only to make childwelfare determinations of abuse, neglect, or abandonment,
specific consent is not required
Thus, specific consent now only required if state court will
determine custody or placement of minor
Children who were never in federal custody as well as
children released from federal custody to their sponsors do
not require specific consent.
Step 2: Obtaining Dependency
Order from State Juvenile Courts
• Once a child in federal custody has obtained
specific consent, if needed, they may proceed into
state court for a dependency order.
• Children that are not in federal custody may
proceed immediately into state court for a
dependency order.
Obtaining The Dependency Order
Juvenile Court and the Role of the
Guardian ad Litem
Julie Gerber Sollinger
Office of the Public Guardian
Filing a SIJS Petition and Obtaining
Lawful Permanent Residence
Manoj Govindaiah, Supervising Attorney
National Immigrant Justice Center
Step 3: Express Consent
• Express Consent by the DHS must be obtained as a
precondition to the grant of SIJS.
• Such consent occurs during the adjudication of the
I-360 SIJ petition.
• DHS must determine that state court proceedings
were not initiated to obtain legal status, but instead
to obtain relief from abuse, neglect, abandonment
Elements Needed for Express Consent
The state court order must establish the following:
• Child declared dependent on a juvenile court or the court has
placed the child under custody of an agency or department of
state;
• Child deemed eligible for long-term foster care due to abuse,
neglect and abandonment.
• Not in the child’s best interest to be returned to country of
origin.
See Yates’ May 27, 2004 Memorandum #3 Field Guidance on Special Immigrant
Juvenile Status Petitions
Order must remain binding and in effect until child adjusts
status to that of lawful permanent resident
Element One
The child must be declared a dependent of Juvenile
Court or legally committed to, or placed under the
custody of an agency or department of the state.
- In Illinois, the proper venue is the juvenile court;
- The child can be living with a foster care family, with nonrelatives, in a group home; or living with court-appointed
guardians.
Element Two
The child must be “deemed eligible for long-term
foster care due to abuse, neglect or abandonment.”
- “Eligibility for long-term foster care” means that family
reunification is no longer a viable option.
See 8 C.F.R. §204.11(a)
- “Abuse, neglect or abandonment” is defined by state laws,
not defined in the immigration statute or regulations.
Element Three
It is not in the child’s best interest to be returned to
country of origin.
8 USC §1101(a)(27)(J)(ii)
• The juvenile court judge can make such findings based on the
facts that the child has been abused, neglected or
abandonment and there is no viable family reunification.
• The following factors may be relevant in such a
determination:
• Child may be accustomed to life in the United States
• Child has been educated in the United States
• Child has built strong personal ties to guardians, counselors and
friends, etc.
Filing the SIJS Petition
• The Supporting Documents and I-360 Form are all
filed with USCIS
– Cover Letter
– Juvenile Court Dependency Order with the requisite SIJS
findings
– Proof of Age & Identify
– Form G-28
– No filing fee is required
• In Chicago, it takes approximately 8-9 months for I360 approval
Step 4: Obtaining Lawful
Permanent Residence
• The approval of I-360 SIJS petition makes a child
immediately eligible for lawful permanent resident
status. To obtain that status, the child should file an
I-485 application (adjustment of status).
• A child who is not in removal proceedings, may file
the I-485 application concurrently with the I-360
SIJS petition with USCIS.
Children are Eligible for Adjustment
of Status Despite the Following:
•Engaging in unauthorized employment;
INA §245(c)(2); 8 C.F.R. §245.1(b)(4)(ii)
•Overstaying a visa at the time of application;
INA §245(c)(2); INA §245(h)(2)(A); 8 C.F.R. §245.1(b)(6)
•Entering the United States without inspection or
permission;
INA §245(h)(1); 8 C.F.R. §245.1(a)
•Previously ordered removed.
INA §212(a)(9)
Filing the Application for LPR Status
• Must file the following supporting documents and
forms:
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–
–
–
–
–
–
–
–
I-485
G-325A
G-28
Medical exam from USCIS Civil Surgeon
3 photos
I-360 Approval Notice
Proof of age and identity
Copy of Juvenile Court Order
Filing fee is $1010, but is waivable
Filing for LPR Status in Immigration Court
Immigration Judge (IJ) retains jurisdiction over the
Application for Adjustment of Status if the child is in
removal proceedings.
•Submit a copy of the I-485 application with fee or fee waiver
pursuant to the instruction sheet given by the IJ to USCIS
•Wait for USCIS to issue a receipt and biometrics appointment
•Serve a copy of the application packet on the Office of Chief
Counsel
•File the original packet with IJ along with medical examination
Filing for LPR Status with USCIS
•If the child is not in removal proceedings, the
I-485 application can be filed directly with the local (most
likely Chicago) USCIS office.
• There will be an in person interview with USCIS
How does SIJS Benefit an
Unaccompanied Immigrant
Minor?
• With lawful status, an unaccompanied immigrant
child will be able to acquire a sense of safety and
stability in his or her life. The child will be able to
go to college, obtain a driver’s license, and work
lawfully.
• Moreover, after 5 years of lawful permanent
residence and reaching the age of 18, the child will
be eligible to apply for naturalization, thus
allowing him or her to become a fullyparticipating member of U.S. society.
Special Considerations when working
with Unaccompanied Children
Alexandra Fung, Staff Attorney
National Immigrant Justice Center
Considerations when
Interviewing Children
• Explain your role and the purpose of the interview
and reassure confidentiality of conversation
• Determine if an interpreter is needed
• Ensure interpreter is qualified and understands her
role
• Ask simple, open-ended questions from different
angles
• Be mindful of child’s age, level of maturity,
education, and past traumatic experience
Thank You!
National Immigrant Justice Center
Alexandra Fung afung@heartlandalliance.org
Manoj Govindaiah mgovindaiah@heartlandalliance.org
Julie Sollinger jgerber@cookcountygov.com
Megan Baumann mbaumann@heartlandalliance.org