What happens to unaccompanied immigrant children who are taken into custody?

////What happens to unaccompanied immigrant children who are taken into custody?

Many unaccompanied children are crossing the border into the United States. Unaccompanied immigrant children who are taken into custody are placed into immigration proceedings, and they will ultimately be removed from the United States or granted immigration relief. Anyone in this situation should seek the advice of an immigration lawyer in New Jersey.

Special Immigrant Juvenile Status is one path for unaccompanied immigrant children. Unlike most immigration statuses, Special Immigrant Juvenile Status, or SIJS, largely uses a state court to qualify the child applicant. If granted, SIJS is a very beneficial immigrant status leading to lawful permanent residence (often referred to as a “green card”).

Qualifications

In order to qualify for SIJS, the applicant must be

  1. Under 21 years old,
  2. Unmarried,
  3. Declared a dependent by the state juvenile court; 
  4. Reunification with one or both parents is not possible or in the child’s best interest (because of physical, mental, verbal, or sexual abuse, abandonment, neglect, or a similar basis), and
  5. It is not in the child’s best interest to return to his or her country of nationality or last residence.

In some states, the age of the child becomes a challenge because the state defines a child as becoming independent, for example, at age 18 but federal immigration law considers this at age 21.  So it becomes very important to have a knowledgeable immigration law who is also familiar with the practices of your local state family court.  

Procedure

Once a child immigrant is placed in immigration proceedings he or she must represent themselves or hire an attorney.  Child immigrants (including young children), like adult immigrants, are not entitled to a court-appointed attorney in immigration court.  There is litigation on going to change this for children, but for the moment that is the law. 

In New Jersey, a Superior Court Judge will make have a hearing with testimony to conclude whether each of the five elements have been satisfied.  The Judge will then make a decision based on the facts and the law.   If the Judge decides the child meets the elements, the child will then apply for SIJS via the United States Citizenship and Immigration Service (USCIS). USCIS is highly deferential to the state court’s findings, and as long as the application appears complete and consistent with the law, USCIS will likely approve the application.

From there, the child will ask file a motion asking the immigration court to terminate the proceedings. The child can then apply for lawful permanent residence (green card or LPR status) with USCIS. It is also highly recommended that the child apply for citizenship when eligible, as lawful permanent residents remain at risk for removal (deportation) if convicted of certain crimes.

Case Strategy

Because of the nature of the visa, a child who is granted SIJS cannot then apply for his or her natural parents to get legal status in the US. If the child intends to gain lawful immigration status and sponsor a parent, he or she will need to apply for a different type of immigration relief.

Depending on the individual circumstances, many other options may be considered. One of the options may include asylum if the child is unable or unwilling to return to his or her country of habitual residence because of persecution, or a well-founded fear of persecution based on the individual’s race, religion, nationality, membership of a particular social group, or political opinion.

A T Visa may be appropriate if human trafficking is involved, and a U Visa may be appropriate if the individual has been the victim of a crime, or the child may be eligible for derivative relief under the Violence Against Women Act (VAWA).

Other forms of immigration leading to lawful permanent residence include family and employment-based visas.  If they qualify, the child likely could have applied for these benefits long before they appeared at the US border. For that reason, these circumstances are rare. For a more complete list of options request a free copy of our book “Do You Qualify for U.S. Legal Status?”

Whether through Special Immigrant Juvenile Status or another route, an unaccompanied child immigrant should be encouraged that there is hope for his or her lawful status in the United States, and an experienced immigration attorney in New Jersey like Andres Mejer can outline the options available.