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The lawful permanent resident category of “Special Immigrant Juvenile” (SIJ) has long been a path to physical safety, permanent residency and eventual U.S. citizenship for alien children and teens who reach the United States seeking refuge here from parental harm in their home countries.

The SIJ provisions of the Immigration and Nationality Act (INA) provide that any “juvenile” (defined as someone under 21 years old in the INA) who reaches the United States and who has an adult sponsor here may apply for SIJ status if the juvenile can establish that he or she was the victim of “abandonment, neglect or abuse” by “one or both parents” in the home country.

However, the path to becoming a “special immigrant juvenile” is long and complex. It is also unique in immigration law because it requires decisions not only by USCIS – United States Citizenship and Immigration Services, the benefits bureau of the Dept. of Homeland Security (DHS) – but also by the state family court in which the juvenile and his/her sponsor resides.

The first step is a suit against “one or both parents” in the local family court in which the sponsoring adult seeks custody of the juvenile and positive findings that the juvenile suffered “abandonment, neglect or abuse” by “one or both parents” in the home country. In addition, the juvenile court must find that it has (1) “jurisdiction” (power to decide the case); that (2) “reunion” with one or both parents is not feasible on account of the parent or parents’ “abandonment, neglect or abuse”; and (3) that it is in the juvenile’s best interest to remain in the United States rather than be returned to the home country.

In most state family courts, being under 21 does not guarantee that one will be considered a “juvenile” subject to the court’s jurisdiction, even though that is the “juvenile” age under federal law. Many states – California, New Jersey and New York are examples – will not exercise jurisdiction in cases of juveniles “over 18” unless there is an additional finding that they are “unemancipated,” and still dependent upon an older, more mature and capable adult such as the sponsor in the case. Frequently, a finding that a juvenile is “unemancipated” requires proof that he/she is a full-time student in high school or college.

After one receives the state custody order with SIJ findings, it is necessary to apply to USCIS for formal SIJ status by filing an “I-360” Special Immigrant Petition. The state court SIJ order is what makes approval of the I-360 possible. An approved or pending I-360 may, depending on Visa priority dates --there are wait times for El Salvador, Guatemala, Honduras—allow the juvenile to apply immediately for a green card by filing a form called an I-485, or at a later time when the “priority dates” for the three above countries are “current.”

I have gotten many cases approved for “over 18” juveniles who are now permanent residents. Under the law as it has been interpreted for years, the question of state family court jurisdiction to decide “over 18” cases and to issue SIJ orders is subject to limited review by USICS. The Agency is supposed to defer to the state court findings of jurisdiction; emancipation; abandonment, abuse and neglect; the lack of feasibility of reunion with “one of both parents,” and the “best interests” of the juvenile regarding remaining in the United States vs. returning to the home country. USCIS’s own internal guidance states this. It was precisely because of state family court expertise in such issues that Congress wrote the SIJ provisions of the INA the way they did.

Under the present Administration, these factors have been ignored by DHS in pursuit of a plainly anti-immigrant agenda. In the past couple of years an unspoken policy, increasingly evident in USCIS behavior, has resulted in numerous “over 18” juveniles having their I-360 SIJ petitions denied simply because they are over 18! In New Jersey in one of my cases USCIS claimed that the NJ family court was mistaken when it concluded that it had jurisdiction to decide the sponsor’s custody complaint because the juvenile was “over 18” and therefore an “adult” under state law. That case in under appeal now.

I can’t emphasize how much this is a violation of the SIJ statutory scheme, and an expression of disrespect for the State Family Courts. It is simply unheard of for a federal agency to substitute its judgment for that of a state court on whether the state court has the power to decide a case! It is contrary to the SIJ statutory scheme, USCIS’s own internal guidance on deciding I-360 SIJ petitions, and to long established principles of the “comity” (respect) that one branch of government should have for another branch of government’s areas of expertise under our state and federal system of laws.

In other words, USCIS’s denial of these over-18 SIJ petitions is plainly illegal.

Fortunately, the rule of law still operates in this country, and in two cases – one in the Federal District Court for the District of Northern California -- J.L., M VB., MD.G.B., and J.B.A. v. Lee Francis Cissna, et al, Docket No. 5:18-cv-049 14-NC (October 24, 2018, N.D. Cal.) – and the other just recently in the Southern District of New York – R.F.M. et al v. Kristjen Nielsen, et. al, Docket No. 18-cv-5068-JGK (March 15, 2019 S.D.N.Y.) – federal judges gave short shrift to the Federal Government’s fallacious arguments and issued injunctions prohibiting DHS and USCIS from making these illegal denials of these over-18 SIJ petitions.

It is my hope that we will see similar litigation curbing this illegal USCIS practice in New Jersey. It is high time DHS focused on keeping America safe from foreign criminals, rather than devoting time, money and resources to harm innocent immigrant kids who are entitled to protection and status under U.S. Immigration law.

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