SPECIAL IMMIGRANT JUVENILE STATUS
JANET GWILYM, KIDS IN NEED OF DEFENSE
LINDSAY LENNOX, NW IMMIGRANT RIGHTS PROJECT
JUDY LIN, KING COUNTY BAR ASSOCIATION
LEGAL ADVOCATES TRAINING
JUNE 1, 2017
OBJECTIVES
As a result of this training, you will:
1. Gain knowledge about Special Immigrant Juvenile
Status as a form of relief for children and youth.
2. Know what types of juvenile and family law
proceedings can rule on predicate orders and have a
general understanding of these proceedings.
3. Be able to choose which juvenile or family law
proceedings will work best for your SIJS clients’ needs
4. Understand the process for applying for SIJS and
related adjustment of status applications with USCIS ,
including waivers.
A WIDE RANGE OF CHILDREN QUALIFY
FOR SIJS
• Children and youth who have experienced
abuse/neglect/abandonment or similar maltreatment in
home country OR U.S.
• Undocumented children living in state foster care
• Children who were brought to the U.S. at a very young
age (i.e. with a relative), never detected by immigration
authorities, living with one fit parent, a relative, or nonrelative caregiver
• Children who entered the U.S. “in status” but that status
expired
• Children referred to immigration authorities through the
juvenile justice system
• Children in deportation proceedings
• Unaccompanied “Alien” Children (UCs)
WHAT IS SPECIAL IMMIGRANT
JUVENILE STATUS?
• Protective status for children based on parental
maltreatment
• Immigrant “visa status” until age 21
• Factual findings from a juvenile or family court
establish eligibility
• Visa approval enables child to apply for Lawful
Permanent Residency when the child’s “priority
date becomes current”
• Waives many grounds of inadmissibility
• Cuts off ability to petition for parent(s) to gain lawful
status
• THREE STAGES, FIVE FINDINGS
SIJS IN A NUTSHELL: 3 STAGES
State court
predicate
order
Petition for
SIJ status
Lawful
permanent
residence
QUICK JUMP AHEAD – STAGES 2 & 3
• Once have the requisite findings from a state court,
submit I-360 Petition for SIJS with USCIS
• Can concurrently file for Adjustment of Status
• UNLESS child from Northern Triangle or Mexico
• If in removal proceedings, will need to file motion to
terminate before AOS can be adjudicated by USCIS
• Currently filed at Chicago lockbox
• Adjudication process has been centralized (11/16)
• More Requests for Evidence
BACK TO STAGE 1: OBTAIN 5
REQUIRED FINDINGS IN STATE COURT
1. Under 21;
2. Unmarried;
3. Dependent on “juvenile court” OR
placed in custody of individual/entity;
4. Reunification with one or both parents
not viable due to abuse, neglect,
abandonment OR similar basis;
5. Not in best interest to return to home
country.
REMEMBER!
• Cannot be filing an action in state court strictly for
the purpose of obtaining SIJS findings.
• How else will the state proceedings help your client?
•
•
•
•
Legal decision making
Support
Services
Stability
• Child must be under State court jurisdiction at time
of SIJS petition filing, AND at the time the SIJS
petition is adjudicated unless jurisdiction ended on
account of age (e.g., at age 18).
STAGE 1: JUVENILE COURT
• “Juvenile court” – any state court with
jurisdiction to make judicial
determinations about the custody and
care of juveniles. 8 C.F.R. § 204.11(a)
• Washington State: dependency,
nonparental custody, parenting plans,
dissolution, delinquency/offender, other
family law or juvenile court proceedings
• Washington State Court Form – JU 11.0500
- Findings and Order Regarding Eligibility
for Special Immigrant Juvenile Status
(FOSIJS)
FINDING: ABUSE, NEGLECT,
ABANDONMENT
“Reunification with one or both parents is not viable
due to abuse, neglect, abandonment, or similar
basis found under [Washington] law.” 8 U.S.C. §
1101(a)(27)(J)(i).
• Federal law entrusts the state court to make findings on
these questions, as per its usual standards and proceedings
• Include facts that support the finding in SIJS order.
FINDING: NOT IN BEST INTERESTS TO BE
RETURNED
“for whom it has been 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,” see also implementing reg. 8 CFR 204.11(c).
• TVPRA of 2008 amendments –non-viability of reunification
with just one parent sufficient
• A best interests determination
• Fact-based, case-specific inquiry based on available evidence
• At judge’s discretion, can involve an inquiry into the child’s
safety, well- being, educational opportunities, food availability,
caretaker, etc. in country of origin vs. in the child’s current
placement
• Include facts that support finding in SIJS Order
SIJS IN FAMILY LAW ACTIONS
Judy Lin
King County Bar Association
Pro Bono Services
Family Law Programs
SIJS IN FAMILY LAW ACTIONS
SIJS findings can be obtained in proceedings in
which court has authority to make decisions about
custody and care of a child.
Some examples of family law actions in WA:
• Nonparental (Third Party)Custody (RCW 26.10)
• Dissolutions (Divorce) (RCW 26.09)
• Petitions to Establish Parenting Plan (unmarried
parents)(RCW 26.26.130)
FACTORS TO CONSIDER
1. Is there evidence of abuse, neglect, abandonment, or similar
basis under state law by one or both parents?
2. Can the WA court enter a child custody order under the
UCCJEA?
3. Will child turn 18 before case can be finalized?
•
•
•
•
•
Will parents join/agree on all issues?
How will parent/s be served?
Statutory waiting period for dissolutions v. Legal Separation
For nonparents, are there additional requirements that need to be met
(CPS/JIS background checks, parenting seminar, etc.)?
new Ch. 13 Vulnerable Youth Guardianships (18-21)
4. For unmarried parents, has paternity been established?
•
•
By court order, acknowledgment/affidavit?
Birth certificate? Look at law of home country
5. Is the relationship between the caregiver and child stable?
6. Is the caregiver committed to the legal process and
responsibility? Risk for undocumented petitioners?
UNCONTESTED WA FAMILY LAW CASE
TIMELINE
Prepare
pleadings
File
the
case
Obtain
joinder
or
Serve
the
parent
Wait for
response
time to
lapsebased
on form
of
service
Dissolution-90
day waiting
period
Nonparental
Custody-CPS
report
Mandated
Classes
Schedule
motion for
default,
motion for
final
orders,
motion for
SIJS
findings
Attend
hearing,
obtain
orders
...DUE TO ABUSE, NEGLECT,
ABANDONMENT OR SIMILAR BASIS
UNDER STATE LAW?
• Nonparental Custody (WA)- parent is unfit or
placement with the parent would result in actual
detriment to the child’s growth and development.
In re Custody of Shields,157 Wn. 2d 126(2006).
• Dissolutions and Petitions to Establish a Parenting
Plan- Factors considered for Parenting Plans (RCW
26.09.191)
• Mandatory restrictions: willful abandonment, substantial
refusal to perform parenting functions, physical, sexual or
emotional abuse of a child, history of domestic violence.
• Permissive restrictions: parental neglect, substantial
noncompliance of parenting functions, lack of emotional
ties, long-term emotional problems or with substance abuse
that impacts parenting, etc.
WHY A CHILD LIVING WITH A PARENT
MAY BE ELIGIBLE FOR SIJS?
“Reunification with one or both parents is not viable due to abuse,
neglect, abandonment, or similar basis found under state law.” 8 U.S.C.
§ 1101(a)(27)(J)(i).
Changes in federal law broadened eligibility (TVPRA 2008)
• Child need not be separated from both parents to be eligible for
SIJS.
• Eliminated requirement where child needed to be “eligible for
long-term foster care.”
Case law: CA, NY
• Matter of Mario S., 954 N.Y.S.2d 843 (N.Y. Fam. Ct. 2012);
• Marcelina M.-G. v. Israel S., 112 A.D. 3d 100, 973 N.Y.S.2d 714 (N.Y. Fam. Ct.
2013)
• Eddie E. v. Superior Court, 223 Cal.App. 4th 622 (2013)
• In Re Israel O., 233 Cal.App. 4th 279 (2015)
Case Law: Nebraska
• Negative precedent: In Re Interest of Erick M. 284 Neb. 340, 820 NW 2d 639
(2012)
DOES THE COURT HAVE JURISDICTION
TO ENTER A CHILD CUSTODY ORDER?
Subject Matter Jurisdiction- Uniform Child Custody
and Enforcement Act (UCCJEA)– RCW 26.27
• governs which state has jurisdiction to make child
custody determinations
UCCJEA also applies to foreign countries
• Treats the foreign country as a foreign state
• For establishment of original custody orders or
modification of an order
UCCJEA HIERARCHY
RCW 26.27.201, .211, .221
1.
2.
3.
4.
5.
Continuing Jurisdiction
Home State Jurisdiction – 6 months
Significant Connection + Substantial Evidence
All courts have declined in favor of this court
No other court has jurisdiction under the above criteria
EMERGENCY JURISDICTION- physically present in the state
AND
•
•
abandoned or
necessary in an emergency to protect the child because the
child, or a sibling or a parent of a child is subjected to or
threatened with abuse.
You can always ask another state to decline jurisdiction.
SUBJECT MATTER JURISDICTION V.
PERSONAL JURISDICTION
• Divisible Family Law – WA may have SMJ for child
custody determinations and not personal
jurisdiction over the parent(s) for other issues. E.g. In re
Tsarbopoulos, 125 Wn. App. 273 (2004)(jdx over disso and child custody even
though no personal jdx over spouse for child support or property division).
• Personal jurisdiction
• Parentage – is it presumed or established?
• Under state law or law of home country – full faith and credit
• Name on birth certificate- Guatemala, El Salvador, Honduras
• Child Support
• Property
• Maintenance
SERVICE OF PROCESS
Address Known– Attempt Agreement
• Accept Service and/or sign joinder
Address Unknown
• Obtain order allowing service by mail at last
known address or publication
• Foreign treaties
INTERNATIONAL SERVICE OF PROCESS
•
Hague Service Convention (e.g. Mexico)
• Translation →Central Authority→ Party
• Exclusive means for service
• Mexico does not allow service by mail under treaty
• Does not apply when address is unknown
•
Inter-American Service Convention and Additional Protocol (IACAP)
• Translation →Letters of Rogatory → Central Authority → Party
• Mexico, El Salvador, Guatemala - yes
• Honduras –no
• Federal case law- not exclusive means
•
WA Civil Rule 4(i)-Alternative Provisions for Service in a Foreign Country – comply with
treaties
• Examples: personal, delivery, registered mail , manner allowed by law of the foreign
country
• “as directed by order of the court”--publication
•
International service under the treaties takes time
• May have to seek temporary orders or continuances
HOW TO OBTAIN SIJS FINDINGS
• Procedure specific to each county – follow local
rules and practice
• Can you present SIJS motion and order when family law
orders are entered?
• Motion, Declaration, Memorandum in Support,
Order
• Washington State Court Form – JU 11.0500 - Findings
and Order Regarding Eligibility for Special Immigrant
Juvenile Status (FOSIJS)
SIJS FINDINGS IN DEPENDENCY
PROCEEDINGS
Janet Gwilym
Supervising Attorney
Kids in Need of Defense, Seattle Field Office
SIJS IN DEPENDENCY PROCEEDINGS
SIJS findings can be obtained in proceedings in
which court has authority to make decisions about
custody/care of a child.
• Dependency (RCW 13.34)
Separate motion for SIJS findings typically considered
at pre-trial conference or fact finding hearings
(sometimes earlier or later).
DEPENDENT CHILD
• RCW 13.34.030(6) "Dependent child" means any
child who:
(a) Has been abandoned;
(b) Is abused or neglected as defined in
chapter 26.44 RCW by a person legally responsible for
the care of the child;
(c) Has no parent, guardian, or custodian
capable of adequately caring for the child, such that
the child is in circumstances which constitute a
danger of substantial damage to the child's
psychological or physical development.
EXAMPLES OF WHEN TO SEEK SIJS
FINDINGS IN DEPENDENCY COURT
• Child is in custody of Office of Refugee Resettlement.
• State courts do not have jurisdiction over custody status and
placement decisions, unless HHS consents to the state court
having this jurisdiction. 8 USC §1101(a)(27)(J)(iii)(I).
• Division of Children’s Services or Unaccompanied Refugee
Minors Program
• Child is living with no parents.
• Washington State has only two parent dependencies
• Other living situations (shelter, other adults, homeless).
• Child is in DSHS custody – dependency already started
or established.
• When not enough time to do a non-parental custody
case.
OTHER FACTORS TO CONSIDER
1. Will the child turn 18 before dependency is
ordered?
2. Will one or both parents be willing to sign an
agreed order?
3. How will parents be served?
4. If not in federal (ORR custody), are there additional
requirements that need to be met (background
checks, home study) and are the people with
whom the child is living willing to participate?
5. How stable is the client’s current living situation?
WHO CAN FILE A DEPENDENCY
PETITION?
RCW 13.34.040
(1) Any person may file with the clerk of the superior
court a petition showing that there is within the
county, or residing within the county, a dependent
child and requesting that the superior court deal with
such child as provided in this chapter.
DEPENDENCY PROCEEDINGS TIMELINE
File the
petition
(Attend
Motions
Hearing)
Fact Finding
Hearing
(Obtain
Orders)
Shelter Care
Hearings
Serve Both
Parents
Review & PP
Hearings
Extended
Foster Care
Termination
of
Dependency
Prepare
Pleadings
SERVICE ISSUES AND CHALLENGES
• If parent is in state – serve personally or by certified mail
no later than 15 court days before FFH.
• If parent is out of state/country and address is known –
serve personally or by certified mail no later than 10
court days before FFH.
• International registered mail, return receipt requested.
• Is the parent’s country covered by international treaties
on service?
• Alternative forms of service
• Motion for Publication
• Motion for Alternative Service (e-mail, fax, DHL, etc.)
• Acceptance of Service
ONCE DEPENDENCY AND SIJS
FINDINGS HAVE BEEN OBTAINED…
• Work with the child in the dependency system is not
complete when the dependency is ordered and
SIJS Findings are made.
• Keep the court informed of the child’s welfare and services,
parents’ compliance, child’s visitation with parents &
siblings, etc.
• File Individual Service and Safety Plan 10 days before hearings
• Serve parents
• If in state foster care or Unaccompanied Refugee Minors
Program, Extended Foster Care until age 21.
DIFFERENCES IN JURISDICTIONS
• Filing practices are specific to each county – follow
local rules and practice.
•
•
•
•
•
Filing method
Working copies
Requesting interpreters
“Pre-Trial Conferences”
Kids’ presence at review hearings
• DSHS/AG roles and involvement vary.
• Washington State Court Form – JU 11.0500 - Findings
and Order Regarding Eligibility for Special Immigrant
Juvenile Status (FOSIJS)
SIJS IN OTHER JUVENILE COURT
PROCEEDINGS
Lindsay Lennox
Staff Attorney
Northwest Immigrant Rights Project
SIJS IN OTHER JUVENILE COURT
ACTIONS
Can be obtained in proceedings in which court has
authority to make decisions about custody/care of a
child.
CHINS- Child in Need of Services (RCW 13.32A)
ARY – At Risk Youth (RCW 13.32A)
Juvenile Offender Proceedings (RCW 13.40)
ARY/CHINS – Can include request for SIJS findings in
petition
• Vulnerable Youth Guardianships- SHB 1988
•
•
•
•
EXAMPLES OF WHEN TO SEEK SIJS
FINDINGS IN JUVENILE COURT
• Child is in the custody of the Juvenile Rehabilitation
Administration.
• Child is living with one parent in the county, has a
conflict with that parent, and is in need of services.
• Child was charged with a criminal offense and on
probation
• Child is living temporarily with a friend or family friend
due to conflict with the parent, and needs services to
reconcile with parent
• Child has a substance abuse problem
• 19 year old youth living with uncle after having been
abandoned by both parents
SERVICE
• For Offender cases, service on parents not required
because they are not a party to the proceeding
• Judges might have questions about this so be prepared
• For CHINS/ARY, parents are party to the
proceedings and must be served with notice of
initial hearing, copy of petition
• At minimum, parent who lives in the county must be served;
best practice to serve both parents
• Parents in CHINS/ARY cases may get appointed public
defenders
• Children in CHINS/ARY cases may get appointed public
defenders
VULNERABLE YOUTH GUARDIANSHIP
• SHB 1988 –aligns Federal law with ST law; effective
date 8/8/17
• Youth ages 18-20 can request that a proposed
guardian be granted custody of them
• Potential guardian must join in petition
• Potential guardian: parent, family member, other adult
• Youth must have been abandoned, abused or neglected
by one or both parents to file petition
NOTE: No service on parents required because
youth over 18 are legally free
HOW TO OBTAIN SIJS FINDINGS IN
JUVENILE COURT PROCEEDING (CHINS,
OFFENDER, ARY, VYG)
• Procedure specific to each county – follow local
rules and practice
• Motion, Declaration, Memorandum in Support, Oral
testimony, Order
• Washington State Court Form – JU 11.0500 - Findings
and Order Regarding Eligibility for Special Immigrant
Juvenile Status (FOSIJS)
HOW TO OBTAIN SIJS FINDINGS IN
JUVENILE JUSTICE PROCEEDINGS
• Separate, predicate order with required findings
recommended.
• Speak with Juvenile Prosecutor before hearing to
determine what their position will be.
• Timing of the SIJS Findings motion:
• ASAP (i.e. at disposition)
• Best practice is to extend probation/jurisdiction until visa is
adjudicated
• Practice tip: probation officer report relied upon as
evidence for findings of abuse/abandonment/neglect and
best interest not to return to country of origin.
UPDATES ON DHS IMPLEMENTATION
MEMOS
• UC Re-Determination
• UCs who reunify with parent(s) no longer UCs
• Children can no longer benefit from protective policies
under TVPRA
• However, May 28, 2013 USCIS Memo still in effect as of now
• Criminal Prosecution of Family Members who
Smuggle Children into the US
• Potential Expansion of Detention & Expedited
Removal
• Return to Contiguous Countries
• Prosecutorial Discretion Curtailed
• New Policies Around the Release of Some UCs
HYPOTHETICAL
Jose, who is turning 18 in two months, came to the U.S. from
Honduras last year, was stopped by CBP & transferred to ORR
custody. He had been living with his grandmother but she became
seriously ill and could not provide adequate food or shelter for Jose.
Jose stopped going to school because local gang members kept
trying to recruit him and threatened to harm him and his
grandmother if he did not join them. Jose’s mother came to the U.S.
seven years ago and lives in WA. Jose’s father left the family when
Jose was 8. His father was physically abusive to his mother. No one
knows where his father currently lives and he’s had no contact with
Jose since he left. ORR released Jose to his mother’s care 7 months
ago. Since that time, Jose has had a rough adjustment. He’s been
caught stealing and has not been going to school.
What types of state court proceedings could potentially be filed to
obtain SIJS findings?
What other information would you want to know?
What issues might be a challenge in this case?
PRO BONO STRATEGIES
• Recruit from pool of attorneys with experience with
state court action (e.g. family law, dependency,
public defenders) to handle cases and/or mentor
• Adjust screening protocols to identify eligible youth
• Leverage resources via partnerships (VLPs, legal aid,
private bar, community-based orgs, etc.)
•
•
•
•
•
Trainings (SIJS, uncontested cases)
Sample pleadings
Translated pleadings
Interpreters/translations
Costs and fees (fee waivers, negotiate publication costs)
• Contact members of the Washington State
Unaccompanied Children’s Task Force
RESOURCES
WLI Washington State Court Special Immigrant Juvenile Status (SIJS) Bench
Book and Resource Guide:
https://www.courts.wa.gov/committee/pdf/SIJSBenchbook.pdf
Quick Guide: SIJS & Washington State Proceedings-Columbia Legal
Services Guide- http://columbialegal.org/sijs
SIJS Order (under Juvenile Miscellaneous Forms)- www.courts.wa.gov
www.washingtonlawhelp.org – self-help packets on how to do several
family law actions.
Immigrant Legal Resource Center- www.ilrc.org
USCIS Website - http://www.uscis.gov/ -search “SIJS”
CONTACT INFORMATION
Judy Lin
King County Bar Association (KCBA)
206-267-7023
[email protected]
Lindsay Lennox
Northwest Immigrant Rights Project (NWIRP)
206-957-8626
[email protected]
Janet Gwilym
Kids in Need of Defense (KIND)
206-359-6209
[email protected]