Examining The Crossover Of Immigration And Family Law In Determining Special Immigrant Juvenile Status


Nadia Sehr Khalid
Senior Staff Attorney, Catholic Charities Dallas

FALL 2021 ISSUE:
FAMILY LAW


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Special Immigrant Juvenile Status is a unique part of federal immigration law that directly intersects with state family law. The intersection occurs at the state court level where an applicant seeking Special Immigrant Juvenile Status must first procure a Suit Affecting Parent-Child Relationship (hereafter, “SAPCR”), or its equivalent, through a state court judge. In determining if a SAPCR is appropriate, the judge conducts a best interest of the child analysis to make the requisite findings of abuse, abandonment, and/or neglect by one or both parents. If granted, the SAPCR awards custody of the child to a designated petitioner. Notably, while the findings of abuse, abandonment, and/or neglect are strictly defined by the state family code, they are imperative in the filing for the immigration benefit of Special Immigrant Juvenile Status.

What is Special Immigrant Juvenile Status?  

Special Immigrant Juvenile Status (hereafter, “SIJS”) is a form of immigration relief and protection afforded by the U.S. Government to minors residing in the United States who need the protection of a juvenile court, principally and specifically because they have been abused, abandoned, and/or neglected by a parent in their home country.1 An approved SIJS offers a path to lawful residency and, in most cases, citizenship. SIJS was created in 1990 when the U.S. Congress passed and enacted the Immigration Act of 1990.2 The Immigration and Nationality Act (“INA”) defines a special immigrant juvenile as an immigrant who is present in the United States and who has “been declared a dependent on a juvenile court or who has been placed in the custody of an agency or individual because one or both of the child’s parents are not able to care for the child due to abuse, neglect, abandonment, or a similar basis under state law.”3

To qualify for SIJS, the applicant must primarily meet four major requirements: first, the applicant must be under 21 years of age at the time the SIJS application is filed. Second, the applicant must be currently living in the United States. Third, the applicant must be unmarried, meaning the applicant must have never been married or, if previously married, the marriage must have ended legally before the time of filing. Fourth, and most importantly, the applicant must have a valid juvenile court order issued by a state court in the United States with dual findings that 1) the applicant is a dependent of the court or an individual appointed by the court, and 2) the applicant cannot be reunified with one or both of applicant’s parents because of abuse, abandonment, neglect, or a similar basis under state law.4

Procuring the State Court Order: Purpose and Limitations of the Suit Affecting Parent-Child Relationship

Before an applicant can be eligible for the immigration benefit of SIJS, the applicant must first obtain a state court order with certain key findings. The most commonly used state court order in these proceedings is the SAPCR. The Code of Federal Regulations (hereafter, “CFR”) states that a child cannot apply for SIJS status without a “predicate” order from a juvenile court.5 The CFR further defines a juvenile court as “any court located in the United States having jurisdiction under State law to make judicial determinations about the custody and care of juveniles.6 This includes family courts, civil courts, and juvenile courts.7 Under Texas Family Code §102.003, only certain people can file a SAPCR. This includes a parent of the child; the child through a representative authorized by the court; a person, other than a foster parent, who has had actual care, control, and possession of the child for at least six months; and/or a relative of the child within the third degree by consanguinity if the child’s parents are deceased at the time of filing the petition.89

While most SAPCR proposed orders follow boilerplate language on information such as party names, addresses, and jurisdiction, the most unique part of the SAPCR remains its crossover with immigration. The Texas Family Code provides definitions of “abuse,” “neglect,” and “abandonment,” all of which are key findings that must be made by a judge at a state level so that the SAPCR can then be used for an SIJS immigration filing.10 Notably, the SAPCR should include facts and evidence surrounding the child’s circumstances that support a finding of “abuse, neglect, and/or abandonment” by one or both of the child’s parents.11

However, it must be noted that it is not the role of the state judge to decide the child’s immigration status. Only the federal government can make that determination through the United States and Citizenship Immigration Services (hereafter, “USCIS”). However, federal law requires state-court findings to proceed with an SIJS application.

State vs. Federal Immigration Analysis: Determining the Best Interest of the Child

In these proceedings, the best interest of the child is always the main priority of the state. The SAPCR process incorporates a family-law based “best interest of the child” analysis. This analysis has a special focus on findings of “abuse, abandonment, and/or neglect.” Ultimately, “best interest of the child” findings are key in making an SIJS determination later on. Under Texas Family Code Sec. 153.002, the “best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of an access to the child."12 In making this substantive determination, the judge will always consider the longstanding Holley factors established by the Texas Supreme Court, which include but are not limited to:

  • The desires of the child
  • The emotional and physical needs of the child now and in the future
  • The emotional and physical danger to the child now and in the future
  • The parental abilities of the individuals seeking custody
  • The programs available to assist these individuals in promoting the best interest of the child
  • The plans for the child by these individuals or by the agency seeking custody
  • The stability of the home or proposed placement
  • The acts or omissions of the parent that indicate that the existing parent-child relationship is improper
  • Any excuse for the acts or omissions of a parent13

Further, within the Holley factors, the SAPCR provides a specific focus on the current and future emotional and physical danger of the child. In the final SAPCR order, the judge has to make determinative findings of abuse, neglect, and/or abandonment of the child by one or both parents, as defined by state family code. These findings are key when filing an SIJS application, as it must be “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. ”14

Practice Pointer: During a consultation, certain fact patterns can alert you to a potential SAPCR eligible case: 1) one or both parents are deceased; 2) the child has lived in multiple households; 3) incidents of physical, verbal, and/or sexual abuse; 4) the child was not fed and/or lived on his own even while living with a designated caretaker; 5) parents/family failed to protect the child from harm; 6) child was in foster care/juvenile system in the U.S. or in their home country; 7) if the child is returned to their home country and no one is willing or able to take care of him/her; 8) alcoholism/domestic violence in the family; 9) the child has been working since they were very young; and/or 10) the child stopped attending school at some point.

Issues that Can Arise after Securing the SAPCR Order

While procuring the SAPCR is the first step, maintaining SIJS eligibility is the second step. The major requirements issued by USCIS stand foremost, namely being under 21 at the time of filing, not being married, and having a valid state court order.15 There are certain grounds of inadmissibility for the SIJS process that are waivable as a matter of discretion. A few common grounds include, but are not limited to: Health-related grounds – communicable diseases, vaccinations, a mental or physical disorder that poses a threat to self or others, drug abuser or drug addict16; adult conviction/s, or admission of conduct while an adult, arising from a single incident involving simple possession of 30 grams or less of marijuana17; prostitution and commercialized vice18; and miscellaneous grounds – polygamists, unlawful voters, etc., to list a few.19

However, there is also a category of certain inadmissibility that cannot be waived, or that is subject to a higher waiver standard. These include criminal and national security issues, such as multiple criminal convictions for which the aggregate sentences to confinement were five years or more (adult convictions only), controlled substance trafficking, and entering the U.S. to engage solely, principally, or incidentally in unlawful activity, to name a few.20

What Deeper Questions does the SAPCR Process Raise?

While this article provides a broad overview of the SAPCR and SIJS process, the deeper, more probative question raised here is why so many immigrant minors are eligible for this form of relief. A SAPCR is an intrinsically direct response to a fragmented family unit, and the data shows no less. The high surge in unaccompanied minors arriving at the border has resulted in a higher volume of SAPCRs being filed on a yearly basis; and that fact pattern alone is worth considering. In 2021 alone, the number of unaccompanied children entering the United States was overwhelming. From Guatemala, there was a reported 18,372 unaccompanied children arriving at the border; 11,949 from Honduras; and 11,785 from Mexico.21

From an immigration point of view, a meritorious SAPCR is the ultimate remedy as it will provide eligibility for the SIJS process, which, thereafter, provides a path to residency and citizenship. But the whole process begs deeper questions left unanswered by a final SAPCR order. For example, why are there so many findings of abuse, abandonment, and neglect? Why are the highest numbers of unaccompanied coming from Guatemala, Honduras, and Mexico? What does this data tell us about an ongoing, escalating instability in family structures in said countries?

Nevertheless, SAPCRs remain unique in their purpose: awarding custody of a child to a designated petitioner after findings of abuse, neglect, and/or abandonment are established; and thereafter, making the child eligible for Special Immigrant Juvenile Status. The best interest of the child analysis glues an otherwise state-specific analysis to an immigration benefit, and that in itself remains noteworthy.


Sources

1 U.S. Citizenship and Immigration Services, Special Immigrant Juveniles, USCIS, https://www.uscis.gov/working-in-the-united-states/permanent-workers/employment-based-immigration-fourth-preference-eb-4/special-immigrant-juveniles (last visited Nov. 01, 2021)

2 See Pub. L.101-649, 104 Stat. 4978 (Nov. 29, 1990).

3 INA § 101(a)(27)(J); 8 CFR § 204.11.

4 U.S. Citizenship and Immigration Services, Special Immigrant Juveniles, USCIS, https://www.uscis.gov/working-in-the-united-states/permanent-workers/employment-based-immigration-fourth-preference-eb-4/special-immigrant-juveniles (last visited Nov. 01, 2021)

5 8 C.F.R. 204.11(a).

6 Id.

7 Id.; See also Tex. Gov’t Code §23.001, §24.601.

8 Tex. Fam. Code §102.003.

9 “Third degree of consanguinity” is defined as a blood relative which includes the individual’s first-cousins, great-grandparents, or great grandchildren.

10 Tex. Fam. Code §261.001, §161.001.

11 Tex. Fam. Code §102.008.

12 Tex. Fam. Code §153.002.

13 HOLLEY v. ADAMS, 544 S.W.2d 367 (Tex. 1976).

14 8 U.S.C. § 1101(a)(27)(J)(ii); 8 C.F.R. § 204.11(c).

15 U.S. Citizenship and Immigration Services, Special Immigrant Juveniles, USCIS, https://www.uscis.gov/working-in-the-united-states/permanent-workers/employment-based-immigration-fourth-preference-eb-4/special-immigrant-juveniles (last visited Nov. 01, 2021).

16 INA § 212(a)(1).

17 INA § 212(a)(2)(A).

18 INA § 212(a)(2)(D).

19 INA § 212(a)(10).

20 INA § 212(a)(3)(A), (B), (C) & (E), INA § 212(a)(2)(C), INA § 212(a)(2)(B).

21 U.S. Customs and Border Patrol, U.S. Border Patrol Southwest Border Apprehensions by Sector, https://www.cbp.gov/newsroom/stats/southwest-land-border-encounters/usbp-sw-border-apprehensions (last visited Nov. 01, 2021).

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