More about This Topic
Family Law and Immigration: Special Immigrant Juvenile Status Cases
I am often called on by my fellow lawyers who practice immigration law to enter an order in the family law or domestic relations courts of Cook County. A family law lawyer can often be the only one to establish the “findings of fact” necessary to grant immigrants certain statuses which allow them remain in the United States legally. One of those statuses a family law lawyer can help with is Special Immigrant Juvenile Status or more commonly referred to as “SIJS”.
Special Immigrant Juvenile Status (SIJS) is a form of relief for some noncitizen minors – specifically those noncitizen minors. In order to be eligible for SIJS, a minor must show that a parent has abused, abandoned or neglected them, and that it is dangerous and not an option to return to their home country.
The child, in order to qualify for SIJS, must show that their custody has been awarded in a court. Often, in immigration cases, there is a parent in the U.S. who is also a noncitizen and fighting to remain in the U.S.. This parent may be the person to whom custody is awarded. However, immigration attorneys usually do not practice in family law and often family lawyers are depended upon to get the necessary state court order for this immigration process as petitioner for SIJS must establish specific elements in a state court order.
First, that the minor has been declared a dependent on a juvenile court located in the U.S., or that such a court has legally committed him or her to, or placed him or her under the custody of, an agency or department of a State, or an individual or entity appointed by a State or juvenile court located in the U.S..
Second the order must establish that reunification with one or both parents is not viable.
Third, the state court order must establish that this reunification is due to abuse, neglect, abandonment, or a similar basis found under State Law.
Fourth, the state court order must show it has been determined that it would not be in the minor’s best interest to return to her home country. INA section 101(a)27)(J); 8 USC section 1101(a)(27)(J).
The state court referred to as a juvenile court in 8 C.F.R. section 204.11(a) means “a court located in the United States having jurisdiction under State law to make judicial determinations about the custody and care of juveniles.” This can therefore include domestic relations or parentage court, guardianship court, adoption court, juvenile dependency court and juvenile delinquency courts as well as others.
Because there isn’t usually a transcript of these proceedings, U.S. Citizenship and Immigration Services, or USCIS, also wants a specific finding of fact in a court order supporting the above findings. USCIS will accept a state court order that makes these finding of fact. For example, that reunification with one or both parents is not viable due to abuse, neglect or abandonment and/or a similar basis under state law, and that return to her home country is not in the child’s best interests.
In order to get a state court order from an Illinois domestic relations court, you can now file a pleading under 750 ILCS 60/214.5 which reads:
“A court of this State that is competent to issue an order of protection has jurisdiction to make the findings necessary to enable a child, who is a subject of or a minor child included in a petition for an order of protection, to petition the United States Citizenship and Immigration Services for classification as a Special Immigrant Juvenile under Section 1101(a)(27)(J) of Title 8 of the United States Code.
(c) If a motion requests findings regarding Special Immigrant Juvenile Status under Section 1101(a)(27)(J) of Title 8 of the United States Code, and the evidence, which may consist solely of, but is not limited to, a declaration by the child, supports the findings, the court shall issue an order, that includes the following findings:
(A) the child is declared a dependent of the court; or
(B) the child is legally committed to, or placed under the custody of, a State agency or department or an individual or entity appointed by the court; and
(2) that reunification of the child with one or both of the child’s parents is not viable due to abuse, neglect, abandonment, or other similar basis; and
(3) that it is not in the best interest of the child to be returned to the child’s or parent’s previous country of nationality or last habitual residence.
(d) In any proceedings in response to a motion that the court make the findings necessary to support a petition for classification as a Special Immigrant Juvenile, information regarding the immigration status of the child, the child’s parent, or the child’s guardian that is not otherwise protected by State confidentiality laws shall remain confidential and shall be available for inspection only by the court, the child who is the subject of the proceeding, the parties, the attorneys for the parties, the child’s counsel, and the child’s parent or guardian.” 750 ILCS 60/214.5
In the court order, if it is a minor guardianship order, the child must be declared a dependent upon the juvenile court or placed in the custody of a state agency or individual appointed by the a juvenile court.
If the court order is custody order, the child must be declared dependent upon a juvenile court or placed in the custody of a state agency or individual appointed by a juvenile court along with the same specific findings of fact supporting the reunification and return requirements as discussed above.
In any state court order, the family law attorney typically knows the court rooms and the judges and is able, with the direction of the immigration attorney, to get the required state court order with the language necessary. This court order is then used in filing the SIJS petition, which, if successful, can lead to permanent resident status.
Another application and adjudication process is required, but it is a path forward for many young non-citizens and for many who are in removal proceedings and fighting asylum and withholding of removal cases, that are very difficult to prove and win in court.
SIJS can be a good option to adjust status. A family law attorney is almost always needed to get the necessary state court order to apply for this relief.
To learn more about how a family law lawyer can help your immigration case, contact my Chicago law office.
If you need an immigration lawyer in Chicago, Illinois, I strongly recommend attorney Anne Peters. Attorney Anne Peters office is just a few blocks from Chicago law office. Directions below: