Discussion Points for Punto Legal –May 15, 2019
1. What is Special Immigrant Juvenile Status?
Special Immigrant Juvenile Status is a way for undocumented children to obtain legal status when they come to the U.S. alone or with only one parent. Children under 18 who are successful in obtaining a special immigrant juvenile benefit are eligible to apply for adjustment of status to that of a lawful permanent resident. However, before a child may apply for the special visa, the process begins in state court. The federal government has tasked state courts with making three findings:
A state court must find (1) that the child should be placed under the custody of an individual appointed by a state; (2) that reunification with one or both of the child’s parents is not possible due to abuse, neglect, abandonment; and (3) that it is not in the child’s best interest to be returned to his or her country of nationality. These three findings must be made before a child can apply for SIJS before the U.S. Citizenship and Immigration Services.
2. What are the steps of an SIJS case?
The SIJS process includes two or three steps, depending on the posture of the case. Very broadly, the steps are as follows: 1. Seek an order from a state court making the three findings required for SIJS; 2. Apply for a special immigrant juvenile benefit with USCIS using Form I-360; 3. Apply for adjustment of status (a green card) using Form I-485 either with USCIS or in the Immigration Court.
Further, court jurisdiction must be established before the child turns 18 years old, but can extend past 18 once it has been established.
In Colorado, district courts make decisions about domestic issues such as child custody. If a minor is already subject to a custody order, or is in need of a custody order giving one parent sole legal and physical custody, you may also petition the court to make the findings necessary for SIJS. A parent may want to request legal and physical custody of a child if they want sole power to make major decisions about the child’s health, education and welfare, and the right to have the child reside with them full-time. In making custody determinations, the court is guided by the “best interest of the child” standard. For purposes of SIJS, the child is considered to be “placed under the custody of…an individual…appointed by [the] court,” by virtue of being placed under the sole custody of the parent with whom they reside.
Example: Hector lives with his grandmother in Mexico. His father has abandoned him. As a teenager, Hector travels to the United States to reunite with his biological mother who has been residing in the United States for years, working and sending money home to provide for Hector. Hector is apprehended while attempting to cross the border and later reunified with his mother in Edwards, Colorado. Hector’s attorney files custody papers in court in Eagle County based on his mother’s desire to establish sole custody over him. His mother is seeking sole custody because Hector’s father abandoned him and she wants to be able to make decisions about his education, healthcare and welfare without his father’s involvement. In connection with the custody papers, an order making the findings necessary for SIJS is requested based on the abandonment by his father.
3. June 2019 Visa Bulletin.
The June 2019 visa bulletin is out. The cut-off date for spouses and children from Mexico is 1 July 2017; last month it was 1 May 2017. The cut-off date from brothers and sisters of citizens from Mexico remains at 8Feb1998.
