Special Immigrant Juvenile Status

Laura Nally, Pro Bono Coordinating Attorney

KIND-DC

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SIJS: Eligibility Criteria Unmarried; Under age 21 (but state law age limitations) Dependent on juvenile court or placed in

custody, in accordance with state law Not viable to reunify with one or both

parent(s) because of abuse, abandonment, neglect, or similar mistreatment as defined by state law Not in best interest to return to country of

origin (See INA 101(a)(27)(J) and TVPRA 235(d)(1))

The Road to Obtaining Permanent Residence Through SIJS

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Step 1: Family Court

Seek jurisdiction of juvenile

court/dependency order

Obtain SIJS predicate order

w/findings

Step 2: SIJS PETITION

Submit form I-360 and predicate order to USCIS

Approval of I-360 Petition

Step 3: Adjustment of Status

Application

Terminate Immigration Proceedings

Submit form I-485 to USCIS and

attend interview

Step One: Family or Juvenile Court

Is there a basis for family court

jurisdiction?

If yes, proceed to filing case!

If no, then child will not be SIJS

eligible.

Types of Juvenile Cases - Guardianship - Custody - Modification of Prior Order - CINA / CHINS - Registration of Foreign

Custody Order - Delinquency - Adoption

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Local courts & terminology

Jurisdiction Court Parental Caregiver

Non-parental Caregiver

Virginia Juvenile & Domestic Relations Court

Custody (petition)

Custody (petition)

Maryland Circuit Court Custody (complaint)

Guardianship (petition)

District of Columbia

Superior Court, Domestic Relations Branch

Custody (complaint)

Third-party Custody (complaint)

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What law is important?

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• Immigration and Nationality Act s. 101(a)(27)(J), as amended by the Trafficking Victims Protection and Reauthorization Act (TVPRA)

• State code sections governing custody or guardianship

• State code sections defining abuse, abandonment and/or neglect

• State code sections outlining the best interests of the child (in your relevant proceeding)

• State procedural rules governing notice and service

What do I want from the family court?

An SIJS eligibility order or a “predicate order” stating: The child is unmarried and under age 21; The court is a juvenile court with jurisdiction to make “care

and custody determinations” of juveniles; The child is dependent on juvenile court or placed in

custody, in accordance with state law Reunification with one or both parent(s) is not viable

because of abuse, abuse, abandonment, neglect, or similar basis/maltreatment as defined in state law

Not in the child’s best interest to return to country of origin

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Abuse, Neglect or Abandonment: What to look for

•Ask about the type of discipline used by the parents •“What would happen if you did something that mom/dad didn’t

like?”

Was the child ever physically or emotionally abused by either parent?

•Lack of emotional relationship + financial support •“When is the last time you saw / spoke to mom/dad?”

Was the child abandoned by either parent?

•Not provided basic necessities •Not provided adequate medical care •Forced to leave school and start working at an inappropriate age

Was the child neglected?

•Was the child abused by a stepparent or other relative in their parent’s home?

•Was a child abused by gang members or a domestic partner? *

Did either parent fail to protect the child from

another abuser? 8

What do I file with the juvenile court?

Entry of Appearance

Any court-provided information/intake sheets

Petition/Complaint for Custody/Guardianship

Birth Certificate

Proposed Custody/Guardianship Order

SIJS Motion

Proposed SIJS Eligibility Order

SIJS Memorandum of Law

Affidavit of Child (w. certificate of translation)

Affidavit of Caregiver (w. certificate of translation)

Supporting Documents (e.g. letters, school reports, country conditions info)

Request for Interpreter (if available)

Filing Fee 9

What happens after I file in MD?

Guardianship Parental Custody Court will return order to show cause to attorney

Court will issue writ of summons

Serve the petition, order to show cause, and notice to interested persons on mother, father, guardian, and child (though service to parents can be waived)

Serve complaint and summons on defendant parent

Return proof of service to court clerk Return proof of service to court clerk

Hearing scheduled (courts schedule hearings at different points in the process – check in with the clerk!)

Wait requisite time period (30/60/90 days) for defendant parent to respond, and file motion for default judgment with the court

** Separate SIJS hearing currently being scheduled in Montgomery County

Return proof of service for default motion to court clerk

Wait 30 days for default period to run and request hearing

Hearing scheduled 10

What happens after I file in DC? Third-party Custody Parental Custody

Family Intake Center will accept initial filing and set initial hearing date (additional filings can be filed electronically with CaseFileXpress)

Family Intake Center will accept initial filing and set initial hearing date (additional filings can be filed electronically with CaseFileXpress)

Courtesy copy of filing to Judge’s chambers Courtesy copy of filing to Judge’s chambers

Initial Hearing – Judge will review service issues (Be prepared for full hearing!)

Initial Hearing – Judge will review service issues (Be prepared for full hearing!)

If alternate service ordered by publication, then plaintiff responsible for publication, costs, and providing proof to clerk If alternate service ordered by posting, then court responsible for posting and plaintiff waits requisite 40 days before default entered

If alternate service ordered by publication, then plaintiff responsible for publication, costs, and providing proof to clerk If alternate service ordered by posting, then court responsible for posting and plaintiff waits requisite 40 days before default entered

Hearing scheduled (supplemental briefing?) Hearing scheduled (supplemental briefing?)

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What happens after I file in VA JDR?

Third-party Custody Parental Custody Clerk’s office will set hearing date and grant alternative service, if requested

Clerk’s office will set hearing date and grant alternative service, if requested

Court will issue summons, if no consents Court will issue summons, if no consents

Serve summons on parent(s) Serve summons on parent

If alternative service required, clerk’s office will arrange service in Washington Times for 4 consecutive weeks prior to scheduled hearing

If alternative service required, clerk’s office will arrange service in Washington Times for 4 consecutive weeks prior to scheduled hearing

Affidavit of publication will be provided by the Times to the Court

Affidavit of publication will be provided by the Times to the Court

Guardian ad Litem may be appointed to conduct home study prior to hearing date

Scheduled hearing

Scheduled hearing 12

What do I prepare for the hearing?

• A proffer of fact regarding custody/guardianship and SIJS eligibility

• Direct exams of child and proposed guardian/custodian to cover custody/guardianship and SIJS eligibility

• Responses to judges’ often-expressed concerns

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SIJS may still be possible, under certain circumstances: Assess service issues immediately (are consents

possible?)

Motion for an emergency or expedited hearing (legal emergency is the basis) Consider post-18 adoption/guardianship options or

nunc pro tunc order

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Help! My client turns 18 in a week!

Step Two: Filing for SIJS Designation with USCIS

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To obtain designation as a Special Immigrant Juvenile, file:

• Brief cover letter, including exhibit list • Form G-28, Notice of Entry of Appearance • Case summary (no more than two paragraphs) • Form I-360 • Signed predicate order with SIJS Findings • Birth certificate with translation

to: USCIS P.O. Box 805887 Chicago, IL 60680-4120

* There is no filing fee for the I-360.

What happens after I file with USCIS?

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• You will receive a filing receipt in the mail – be sure to keep this! • Under the statute, USCIS has 6 months to adjudicate the I-360. Set a reminder on your calendar for 6 months after filing. • Neither Baltimore nor the Washington Field Office are interviewing for the I-360. • Request for Evidence (RFE) can be issued if any information is missing, or approval issued by mail.

Step Three: Adjustment of Status

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• Seek to terminate proceedings • File I-485 and supporting documents

with USCIS • Beware of “inadmissibility” issues • Attend interview at USCIS office

If child is in removal

proceedings (most

common)

• Can file I-360 and I-485 together • One interview on both applications

If child is NOT in removal

proceedings

What happens after I file?

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You’ll receive a receipt notice for the I-485 and/or the I-765 You’ll receive a biometrics appointment notice Child must attend biometrics appointment; attorney generally does not Interview will be scheduled with USCIS or Individual Merits hearing will be set by Immigration Judge

USCIS Interview Immigration Court Hearing

• Must bring an interpreter • Interpreter provided by court

• Bring originals of everything filed • Bring originals of everything filed

• Interview is limited to the questions on the I-485 form

• Prepare proffer and direct exam for child

• Review questions on the form with child

• Moot child for direct and cross exams

• Approval/denial may or may not happen that day

• Expect approval/denial the day of hearing

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Grounds of Inadmissibility: SIJS Exemptions!

Public Charge INA 212(a)(4)

No labor certification

INA 212(a)(5)(A)

Entry w/o valid entry document

INA 212(a)(7)(A

Present Without Admission or

Inspection INA 212(a)(6)(A)

Document Fraud, Misrepresentation, False claim to USC

INA (a)(6)(C)

Stowaway INA (a)(6)(D)

Unlawful Presence ** Important for children over 18! INA 212(a)(9)(B)