Immigration Law articles are sponsored by the CBA Immigration Law Section to present current issues and topics of interest to attorneys and judges on all aspects of immigration law.
Timothy Reynolds, Boulder, of Bryan Cave HRO—(303) 417-8510, email@example.com
About the Authors
Jami Vigil is a magistrate judge in the Fourth Judicial District, presiding over Family Treatment Drug Court (FTDC), as well as a full juvenile docket including dependency and neglect, adoption, relinquishment, paternity, and child support cases. She worked for many years in the areas of immigration, criminal appeals, juvenile law, and probate law—firstname.lastname@example.org. Frances R. Johnson
is a magistrate judge in the Fourth Judicial District, presiding over probate and mental health cases. She has co-presented at multiple probate CLEs and also has experience in criminal, civil, appellate, and juvenile law—email@example.com.
Recently there has been an increase in the number of unaccompanied alien children apprehended in the United States. Many of these children are eligible for Special Immigrant Juvenile status. To petition for such status, a child must (among other things) obtain an order in state court. This article discusses the elements of the state court order and addresses practice questions related to seeking the order in probate court.
Recent years have seen an increase in the number of children apprehended by Department of Homeland Security immigration officials while in the United States and separated from parents and relatives. These children are especially vulnerable, here alone without a caregiver and with no lawful immigration status. Dubbed “Unaccompanied Alien Children” (UAC), these minors have often survived a very dangerous journey, where they were at great risk for human trafficking, exploitation, and abuse.1 Additionally, many of these children traveled to the United States to escape abusive family relationships, community violence, and extreme poverty.2 Following apprehension by immigration officials, the children are transferred to the care and custody of the Office of Refugee Resettlement (ORR), which provides food, shelter, and medical services pending their release into the care of a sponsor and resolution of immigration proceedings.3
Since 2011 there has been an increase in the number of UAC arriving in the United States. The ORR reported that between October 2013 and January 2016 it released 100,516 UAC to sponsors nationally; 829 of these children were released to sponsors in Colorado.4 Sponsors are adults deemed suitable by ORR to care for the child’s physical and mental well-being who agree to ensure the child’s presence at all future immigration proceedings and comply with immigration orders, including departure orders.5
Many of these children are eligible for a special immigrant classification known as Special Immigrant Juvenile status (SIJS) based on having experienced abuse, abandonment, or neglect to the extent that those children are unable to reunite with one or both parents.6 The Special Immigrant Juvenile (SIJ) program provides a means by which certain eligible children may obtain permanent residence in the United States.7 This program is unique in that it involves both state and federal entities. To petition for SIJS, an applicant must have a specific state court order, which is then used by U.S. Citizenship and Immigration Services (USCIS) to determine the applicant’s status. This article briefly examines the elements of the requisite state court order and addresses some practice questions related to seeking the order in probate court.
The State Court’s Findings of
Fact and the Probate Example
While only USCIS has the authority to render a final decision as to the child’s immigration status and benefits, only state courts can make the special findings of fact regarding the best interest of a child for purposes of establishing eligibility for SIJS.8 Often the state court order is called a juvenile court order; however, any state court having the authority to decide custody and care of children can enter the requisite order.9
States have different names for their courts. In Colorado, this state court order may originate under Title 19 (the Children’s Code) within a dependency and neglect, delinquency, or adoption case; under Title 15 within a probate guardianship; or, under some circumstances, pursuant to a Title 14 (Allocation of Parental Responsibilities) domestic relations or custody proceeding. The similar feature in all of these proceedings is that the court receives evidence relating to the location of the child’s parents, the potential for reunification with a parent or parents, and the best interests of the child. State courts are particularly well situated to receive this type of evidence, which may include affidavits, testimony, written reports, evaluations or assessments, and any other materials deemed admissible by the state court.
The requisite findings of fact, which are discussed below, are made in accordance with the particular state’s laws.
• The child is deemed dependent on, or has been placed under the custody of an individual or entity appointed by, the court.10 The court must find that the child is “dependent” or has been “committed to, or placed under the custody of, an agency or department of a State, or an individual or entity appointed by a State” court.11 This component may be satisfied in a number of ways. For example, a child is dependent when, in a dependency and neglect or delinquency case, the court orders custody with the county department of human services for purposes of placement with kin, kin-like, foster families, or congregate or residential care settings. Another example is court-ordered placement with a legal guardian in a probate guardianship proceeding.
Within El Paso County, for example, many (if not most) motions for an SIJS order are filed in probate court because guardians are often appointed for UAC through a probate proceeding.12 Obtaining the predicate court order begins with initiating a probate guardianship in the same manner as any other minor guardianship, non-SIJS case. A petition for appointment of a guardian is filed in the county in which the juvenile resides or is present when the petition is filed.13 This requirement is helpful because the child must be located within the United States to apply for the SIJ program.14 A petition for guardianship may be filed by any interested person, including the minor,15 as long as the nominated guardian is 21 years of age or older.16 All supporting information required for appointment of a guardian must also be filed, including an acceptance of office, and criminal and credit history checks. Some requirements of the background check, such as the credit history check when the nominated guardian does not have a Social Security number, may be waived by the court for good cause.17
A request for entry of the specific SIJS findings may be included in the petition for appointment of a guardian or may appear in a separate motion. It is not good practice nor consistent with procedural rules to request these very specific factual findings through a verbal motion.18 Additionally, the motion should include not only the basis for the court’s authority to enter this order but also a brief statement about how the court has sufficient factual information necessary to enter an SIJS order. Consulting with an experienced immigration attorney is recommended.
• The child is not able to reunify with one or both parents as a result of abuse, abandonment, neglect, or some similar state law basis, and it is not in the child’s best interest to return to the country of origin.19 Abuse, abandonment, and neglect are defined by state law, and in reviewing SIJS applications, USCIS will defer to those definitions. Likewise, factors for the court to consider in determining what is in the child’s best interest are outlined in state statutes. It is important that the court be able to enter specific findings of fact as to (1) the nature of the abuse, abandonment, or neglect; (2) why reunification with one or both parents should not occur; and (3) why return to the country of origin is not in the best interest of the child. This last finding may require consideration of whether the child has family or community support, and specific medical, therapeutic, and educational needs and opportunities within the United States, versus in the child’s country of origin. It is also important to examine the emotional and psychological well-being of the child.
The court should conduct an evidentiary hearing to address the motion for SIJS. Some practitioners choose to obtain transcripts of the evidentiary hearings to supplement the actual SIJS petition. Within the probate context, upon the filing of the petition for appointment of a guardian, “the court shall schedule a hearing, and the petitioner shall give notice of the time and place of the hearing.”20 This guardianship hearing may be an appropriate time to address the SIJS findings, or the court may conduct a separate hearing. Following the hearing, the court must make the requested appointment if the court finds that:
1) a qualified person seeks appointment;
2) venue is proper;
3) the required notices have been given;
4) the appointment is in the minor’s best interest; and
5) either the parents consent, parental rights have been terminated, the parents are unwilling or unable to exercise their parental rights, or a guardianship has previously been granted to a third party and the third party died without making an appointment in a will or other written instrument.21
The last two findings may be particularly relevant for an SIJS petition. Practitioners should keep in mind that one of the bases on which a guardianship may be granted is that the child’s parents consent; however, such a finding may be directly contrary to the SIJS factual finding that reunification with one or both parents is not viable due to abuse, neglect, abandonment, or a similar basis under state law.22 The SIJS factual findings may be contained in the order appointing a guardian or detailed in a separately issued written order.
• The court will maintain jurisdiction over the youth until SIJS is granted, or until the child reaches an age at which continuing jurisdiction is no longer possible (the child ages out). The state court case must remain open until either the child ages out under the particular state statute governing the case, or until the SIJS application process is complete, whichever comes first. There are age-out protections for SIJS petitioners. At the time the SIJS petition is filed, the minor must be under the age of 21 and unmarried, and as long as that is the case, USCIS cannot deny SIJS to the petitioner on the basis of the petitioner’s age at the time of adjudication of the SIJS petition.23 Additionally, USCIS is required to adjudicate SIJS petitions within 180 days of proper filing.24
Practitioners must timely file. The state court order must be obtained before the child ages out of the court’s jurisdiction. This age will vary by state and case type. For example, jurisdiction in a dependency and neglect case may in some circumstances extend until the minor is 21 years old. However, in Colorado probate cases, minor guardianships terminate when a minor is adopted, emancipated, or reaches age 18.25 As such, the state court must have issued the guardianship and SIJS orders in the probate case before the minor turned 18 years old. The case cannot close due to a factor other than age, such as adoption. As long as the SIJS petition is properly filed and before USCIS, probate case closure due solely to aging out does not negatively impact the SIJS application.
As a practice note, it is possible that a probate court will determine it is in the child’s best interest to appoint a guardian shortly before the minor’s 18th birthday. In these instances, it may be helpful for the state court’s order appointing a guardian (or the separately issued SIJS order) to include language indicating that the court maintains limited jurisdiction past the minor’s 18th birthday for the purpose of verifying the validity of the court’s factual findings.26 This is important because temporary state court orders are insufficient for SIJS petitions.
The purpose of SIJS is to provide benefits to a particularly vulnerable population of children. Under this program, children found within the United States without immigration status who are abused, abandoned, or neglected by one or both parents to an extent preventing reunification may receive permanent residency. Children receiving SIJS will have greater access to social services and assistance, which will offer them long-term permanency, stability, and a chance for healing.
When petitioning for SIJS, practitioners should ensure that the state court order requirements are met by (1) timely filing the petition; (2) paying attention to the court’s jurisdiction to both make the required findings of fact and to maintain jurisdiction of the matter; and (3) presenting sufficient evidence upon which the court can make all of the required findings of fact.
This is an important program enlisting both state and federal bodies to ensure the best interest of the child.
1. U.S. Dep’t of Health and Human Services, Administration of Children and Families, Office of Refugee Resettlement, “Unaccompanied Children Released to Sponsors by State,” www.acf.hhs.gov/programs/orr/programs/ucs/state-by-state-uc-placed-sponsors.
6. Memorandum, “Updated Implementation of the Special Immigrant Juvenile Perez-Olano Settlement Agreement,” PM-602-0117 (June 25, 2015), www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/
7. 8 USC § 1255(h).
8. 76 FR 54978, 54979–54980 (Sept. 6, 2011); 8 USC 1101(a)(27)(J)
9. 76 FR at 54980.
10. 8 USC § 1101(a)(27)(J)(i), (ii); 8 CFR § 204.11(a),(c), (d)(2).
11. 8 USC § 1101(a)(27)(J)(i), (ii). See also Memorandum, “Trafficking Victims Protection Reauthorization Act of 2008: Special Immigrant Juvenile Status Provisions,” HQOPS 70/8.5 (Mar. 24, 2009), www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/2009/TVPRA_SIJ.pdf.
12. See CRS §§ 15-14-201 et seq.
13. CRS § 15-14-108(1).
14. 8 USC § 1101(a)(27)(J)(i), (ii); 8 CFR § 204.11(a),(c), (d)(2).
15. CRS § 15-14-204(1).
16. CRS § 15-14-102(4).
17. CRS § 15-14-110(4)(g).
18. CRCP 121 § 1-15(1).
19. 8 USC § 1101(a)(27)(J)(i), (ii); 8 CFR § 204.11(a),(c), (d)(2).
20. CRS § 15-14-205(1).
21. CRS §§ 15-14-205(2), -204(2).
22. 8 CFR § 204.11(a), (c).
23. Memorandum, supra note 11.
25. CRS § 15-14-210(1).
26. See 8 CFR § 204.11(c)(5).