Iowa Probate Court Guide to SIJS - University of Iowa · 4!! immigrant! children! to! sponsors! in!...

Understanding SIJS A Guide to Special Immigrant Juvenile Status

for Probate Court Judges in Iowa

Ashley Brosius, Matt Enriquez, Crystal Schreiber, and Emily Sohn

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I. TABLE OF CONTENTS

II. INTRODUCTION: SPECIAL IMMIGRANT JUVENILE NEEDS IN IOWA ............................................................ 2

III. ADJUDICATING GUARDIANSHIPS FOR IMMIGRANT YOUTH ....................................................................... 5

a. Step 1: Establishing Iowa State Court Judges’ Jurisdiction ............................................... 6

b. Step 2: Notice in Cases Involving Immigrant Youth .............................................................. 7

c. Step 3: Reviewing Petitions Involving Immigrant Youth ................................................... 9

i. Special Considerations for Appointing an Undocumented Guardian ............................. 10

ii. Special Considerations for Appointing One Parent as Guardian ...................................... 11

d. Step 4: Issuing Orders or Denying Petitions for Immigrant Youth ........................... 12

i. Declaring an Immigrant Youth Dependent on State Court ................................................. 13

ii. Finding That Reunification with One or Both Parents Is Not Viable Due to Abuse,

Abandonment, Neglect, or a Similar Basis Under State Law ............................................ 13

iii. Finding That It Is Not in the Best Interests of the Child to Return to His or Her

Country of Origin ................................................................................................................................. 23

iv. Denying Petitions When There Is Insufficient Evidence ...................................................... 26

IV. CONCLUSION ..................................................................................................................................................... 26

APPENDIX A: Model SIJS State Court Orders ................................................................................................ 27

APPENDIX B: Examples of SIJS State Court Orders .................................................................................... 33

APPENDIX C: Model Notice by Publication for Parents Outside the United States ...................... 34

APPENDIX D: SIJS Case Law ................................................................................................................................. 36

APPENDIX E: SIJS Federal Statutes and Regulations ................................................................................. 39

APPENDIX F: USCIS Information and Authoritative Releases on SIJS ............................................... 43

APPENDIX G: Glossary of Immigration Terms ............................................................................................. 45

APPENDIX H: A Primer on Immigration Law ............................................................................................... 47

APPENDIX I: Acknowledgements ...................................................................................................................... 51

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II. INTRODUCTION: SPECIAL IMMIGRANT JUVENILE NEEDS IN IOWA

This guide is a response to the American Bar Association Resolution 113 issued in

2015, which states, in part, that: “State court judges and staff should receive training to learn to effectively and timely hear and adjudicate petitions or motions on behalf of immigrant children, including for the purposes of making predicate findings that are required for a child to obtain Special Immigrant Juvenile Status.”1 This training is so important because state court judges play a key role in adjudicating Special Immigrant Juvenile (“SIJS”) cases.

Congress created SIJS in 1990 in response to concerns about the welfare of abused,

neglected, or abandoned immigrant children.2 SIJS is an immigration classification conferred by U.S. Citizenship and Immigration Services (“USCIS”) to protect these vulnerable immigrant youth. As the provisions exist now, children are eligible for SIJS when they meet the following criteria:

Ø Are under 21 at the time of filing;

Ø Are unmarried;

Ø Are present in the U.S. at the time of filing; and

Ø Are subject to a valid state court order with three findings:

1) Reunification with one or more of the child’s parents is not viable due to abuse, neglect, abandonment, or a similar reason under state law;

2) The child is a dependent of the court, a state agency, or another court-‐appointed individual; and

3) It is not in the child’s best interests to return to the child’s former country. 3

To apply for the federal immigration status of “Special Immigrant Juvenile,” an immigrant child must first obtain a legal guardian through a state court proceeding. The state court does not grant federal immigration benefits or determine immigration status; rather, it adjudicates the merits of the guardianship petition.

Although immigration law is an area

of federal administrative law, state court judges still play an important role in the lives of noncitizens who come before the bench. An SIJS petition is one example of how a state court judge might impact an individual’s immigration status, even

1 Resolution 113, Am. Bar Ass’n (2015), http://www.americanbar.org/content/dam/aba/images/abanews/ 2015mm_hodres/113.pdf. 2 Ruth Ellen Wasem, Cong. Research Serv., R43703, Special Immigrant Juveniles: In Brief Summary 1 (2014). 3 William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub. L. 110-‐457, 122 Stat. 5044; 8 C.F.R. § 204.11 (2009).

State court judges have jurisdiction to adjudicate cases involving immigrant youth seeking federal SIJS. This is not ruling on federal immigration benefits or legal status.

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though the judge will not directly confer an immigration benefit or legal status upon that person.4 This is because federal law requires USCIS to defer to state juvenile and probate courts’ “specific findings [of fact]” regarding a child’s welfare and best interests.5

Although USCIS gives great weight to a state court’s findings, the immigrant

petitioner must still meet other eligibility criteria to adjust immigration status and receive immigration benefits. After the petitioner has received a state court guardianship order containing the findings of fact required for a successful SIJS petition, the petitioner must still file two separate applications with USCIS. First, the petitioner must apply for special immigrant juvenile status, and then the petitioner must file an application for adjustment of status to a lawful permanent resident (i.e., “green card holder”).6 SIJS alone does not grant the petitioner lawful permanent resident status. The petitioner only receives permanent residency when USCIS favorably adjudicates the application to adjust status. To adjust status the petitioner must make disclosures about her background and good moral character. At this stage, it is possible that USCIS may decide that the petitioner is not eligible to become a permanent resident, even when the state court made the findings of fact for the appointment of a guardian and USCIS granted the SIJS petition. Therefore, the guardianship order containing the SIJS findings of fact is a necessary, but not a determinative step in the petitioning process.

SIJS is not new, but it has garnered more attention recently due to the surge of Central American children who entered the United States—without a parent or guardian to care for them—from 2013 through 2015. These children are commonly referred to as “unaccompanied children.”7 Iowa has become home to a number of these children through the Office of Refugee Resettlement’s (“ORR”)8 reunification process.9 From October 2013 to September 2014 (Fiscal Year 14), ORR reported that it released 235 unaccompanied

4 The federal immigration framework recognizes several situations where state court judges are in the best position to make certain findings of fact. Such cases may include children “immigrat[ing] through an adoptive parent; battered spouses attempting to escape from a batterer who uses the victim’s lack of immigration status as a weapon; and victims of crimes who are fearful of coming forward because of immigration issues.” Angie Junck, Sally Kinoshita, & Katherine Brady, Immigrant Legal Resource Center, Immigration Benchbook for Juvenile and Family Court Judges 1 (2010), available at http://www.ilrc.org/files/ 2010_sijs_benchbook.pdf. 5 Id.; see also Petitioner [Identifying Information Redacted by Agency], Petition for Special Immigrant Juvenile Pursuant to Section 203(b)(4) of the Immigration and Nationality Act, 8 U.S.C. S 1153(b)(4), as described at Section 101(a)(27)(J), 2013 WL 8118295, at *2 (INS Dec. Oct. 25, 2013) (noting USCIS’s declaration that it is “not the fact finder” regarding “issues of child welfare under state law”). 6 For a more thorough explanation of lawful permanent resident status and other immigration statuses, see Appendix H. 7 6 U.S.C. § 279(g)(2) (2013). 8 ORR is an arm of the United States Department of Health & Human Services. It provides unaccompanied minors with a living environment before placing them with a U.S. sponsor or returning them to their home country. For more information on the ORR, see Office of Refugee Resettlement, About, U.S. Dep’t of Health & Human Servs., http://www.acf.hhs.gov/programs/orr/about (last visited Apr. 21, 2015). 9 Olga Byrne & Elise Miller, Vera Ctr. on Immigration & Justice, The Flow of Unaccompanied Children Through the Immigration System 4, 17 (2012), available at http://www.vera.org/sites/default/files/resources/ downloads/the-‐flow-‐of-‐unaccompanied-‐children-‐through-‐the-‐immigration-‐system.pdf (“Most children (75 percent) remain in ORR custody for one week to four months, with an average stay of 61 days.”).

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immigrant children to sponsors in Iowa.10 ORR documented 32 additional children placed with sponsors from October 2014 to December 2014. A sponsor may include a parent, family member, caring community member, or state agency.11 An ORR sponsor, however, is not a legal guardian under Iowa or federal law. Consequently, an order from a court is still required to establish a formal guardianship.

USCIS has provided a non-‐exhaustive list of children (in addition to unaccompanied

children) who may also be eligible for SIJ status.12 This list includes children who may:

Ø Be in a state’s child welfare system Ø Be living with a foster-‐family, an appointed guardian, or the

non-‐abusive parent Ø Have been the victim of child abuse that occurred while

residing in the U.S. Ø Have been the victim of child abuse that occurred in the

child’s home country Ø Be, or have been, in federal custody due to their

undocumented status

The purpose of this guide is to assist judges in adjudicating cases involving unaccompanied minors or any of the immigrant youth described above who are seeking federal SIJS. Students in the Advanced Immigration Law & Policy Seminar at the University of Iowa College of Law prepared this guide as a part of a larger project for the American Immigration Lawyers Association. This guide describes the steps a state court judge will take while adjudicating cases involving such youth in Iowa probate courts. While immigrant youth seeking SIJS may also petition after dependency or custody proceedings in the juvenile or family courts respectively, thus far in Iowa, the majority of immigrant youth have sought SIJS findings of fact in probate court.

10 Unaccompanied Children Released to Sponsors by State, Off. of Refugee Resettlement, http://www.acf.hhs.gov/programs/orr/programs/ucs/stateUbyUstateUucUplacedUsponsors (last visited Feb. 18, 2015). 11 See generally Stipulated Settlement Agreement, Flores v. Reno, No. CV 85-‐4544-‐RJK (C.D. Cal. Jan. 17, 1997), available at https://www.aclu.org/sites/default/files/assets/flores_settlement_final_plus_extension_of_ settlement011797.pdf. 12 U.S. Citizenship & Immigration Servs. M-‐1114B, Immigration Relief for Abused Children (Apr. 2014), available at http://www.uscis.gov/sites/default/files/USCIS/Green%20Card/Green%20Card%20Through% 20a%20Job/Immigration_Relief_for_Abused_Children-‐FINAL.pdf.

From USCIS Special Immigrant Juvenile Status: Information for Juvenile Courts

In Iowa: The Office of Refugee Resettlement released 267 unaccompanied minors to sponsors (e.g., parent, family member, caring community member, state agency) between October 2013 and December 2014.

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III. ADJUDICATING GUARDIANSHIPS FOR IMMIGRANT YOUTH

Adjudicating guardianship petitions for immigrant youth is a four-‐step process.

First, the court must establish its jurisdiction. Second, the court must determine the notice requirements in cases involving immigrant youth. Third, the court must review the contents of the petition and its evidentiary support. Fourth, and finally, the court must deny the petition or grant the petition and issue an order. This section of the guide reviews each of those steps in turn.

Step 1 • Establishing Jurisdiction

Step 2 • Determining Notice Requirements

Step 3 • Reviewing the Petition

Step 4 •  Issuing Orders or Denying Petitions for

Immigrant Youth

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a. Step 1: Establishing Iowa State Court Judges’ Jurisdiction

Iowa probate courts have jurisdiction to adjudicate guardianship orders for immigrant youth applying for SIJS. To apply for SIJS, the applicant must have received an order or judgment from a “juvenile court located within the United States.”13 “Juvenile court,” however, is a statutory term of art.

For SIJS purposes, a “juvenile

court” is any court with the two following qualifications: first, the court must be “located within the United States.”14 Second, the court must have “jurisdiction under state law to make judicial determinations about the custody and care of juveniles.”15 USCIS lists juvenile, family, and probate courts as examples of courts that meet these requirements.16

Iowa probate court orders can form the basis of an SIJS petition. The courts have jurisdiction to make determinations about the custody and care of minors. Iowa Code § 633.10 grants the probate court jurisdiction over “the appointment of guardians and conservatorships,” including for minors.17 Courts authorize guardians to “provide for the care of the ward” and to make decisions about the ward’s housing and medical care.18 Iowa probate courts are therefore “[c]ourts located within the United States [having] jurisdiction under state law to make judicial determinations about the custody and care of minors.”19 In practice, the USCIS field office in Des Moines routinely grants SIJS petitions involving Iowa probate court guardianship orders.

Ø Youth in Office of Refugee Resettlement Custody Must Gain the

Department’s Specific Consent

Many immigrant youth seeking federal SIJS will have gone through ORR’s reunification process and be living with sponsors in Iowa. But some children may petition a probate court in Iowa while they are still in ORR custody. In that situation, federal law requires the child to gain specific consent from the Department of Health and Human Services for the state court to exercise jurisdiction over the child.

13 8 U.S.C. § 1101(a)(27)(j)(i) (2013). 14 8 C.F.R. 204.11(a) (2009). 15 Id. 16 U.S. Citizenship and Immigration Servs., Special Immigrant Juvenile Status: Information for Juvenile Courts, at 1, available at http://www.uscis.gov/sites/default/files/USCIS/Green%20Card/Green%20Card%20Through %20a%20Job/Information_for_Juvenile_Courts_-‐FINAL.pdf. 17 Iowa Code § 633.552 (2015). 18 Id. § 633.652. 19 8 C.F.R. 204.11(a).




Step 4 •  Issuing Orders or Denying Petitions for Immigrant Youth

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b. Step 2: Notice in Cases Involving Immigrant Youth

SIJS-‐related guardianship petitions often involve difficulties effecting notice on potentially interested parties; however, notice requirements in SIJS-‐related guardianship proceedings are identical to notice requirements in all other guardianship petitions. Regardless of whether the petition is voluntary or involuntary, the proposed ward is entitled to notice.20 For voluntary petitions, it is sufficient to include the notice in the petition itself.21 For involuntary petitions, notice should be separate from the petition.22

In SIJS-‐related guardianship petitions, it is often impossible to serve notice on the parents because the proposed ward is often unsure of a parent’s identity. Generally, it is true that if the proposed ward is under the age of 18, the proposed ward’s parents must receive notice.23 However, notice only needs to be served on people whose identities are reasonably ascertainable.24 If the identity of one or both of the ward’s parents is unknown, and it would be unreasonable to try to ascertain the parent’s identity, it is not necessary to attempt service on that person.

If the proposed ward is under 18 and unsure of a parent’s location, however, service must still be attempted. If a person’s identity is reasonably ascertainable, but her whereabouts are unknown, the person should be served by publication.25 Prior to service by publication, the petitioner should file an affidavit that personal service is not possible.26 Accompanying the affidavit, the petitioner should submit a proposal for service by publication. For example, a notice announcement may be submitted to a local newspaper in the child’s country of origin.27

20 Iowa Code § 633.554. 21 Id. § 633.557. 22 Id. § 633.554. 23 Id. § 633.554. 24 Id. § 633.554(3). 25 Iowa R. Civ. P. 1.310(7). 26 Id. at 1.310. 27 See Appendix C for a model of notice by publication.




Step 4 •  Issuing Orders or Denying Petitions

for Immigrant Youth

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Notice for Immigrant Youth Seeking Guardianship Orders Containing the Findings of Fact for a Successful SIJS Petition

Who is entitled to notice?

Parents of Proposed ward?

Is the proposed ward over 18 years of age?

The parents are NOT entitled to

notice.

Is the proposed ward under 18 years of age?

Are the identities of the parents reasonably

ascertainable?

Yes

Parents should be served in the manner of original

notice. Service by publication is acceptable

where a parent's whereabouts are

unknown.

No

Parents whose identities are not reasonably

ascertainable are not entitled to

notice.

Proposed Ward?

Voluntary Petition?

Notice to the proposed ward should be contained in the petition itself. No further notice to the ward is necessary.

Involuntary Petition?

The ward should be served in the manner of

original notice.

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c. Step 3: Reviewing Petitions Involving Immigrant Youth There are two elements to look for when adjudicating a guardianship petition: (1) the guardianship must be necessary to ensure the ward’s well-‐being, and (2) the guardian must be qualified and suitable to serve in such capacity.

For the court to grant a

guardianship petition, it must find the guardianship to be necessary.28 To be “necessary,” the proposed ward must be under some kind of legal disability: either the proposed ward must be a minor or have impaired decision-‐making capacity.29 Often, guardianships in SIJS-‐related petitions are necessary because the proposed ward is a minor. But because the federal age limit for SIJS petitions is 21, it is not uncommon for SIJS-‐related petitioners to be over 18. In cases where the proposed ward is over 18, the petitioner must establish that the ward’s decision-‐making capacity is impaired, either such that “the person is unable to care for the person’s personal safety or to attend to or provide for necessities for the person . . . without which physical injury or illness may occur,” or such that “the person is unable to make, communicate, or carry out important decisions concerning the person’s financial affairs.”30 As a result, an 18–21 year old immigrant petitioner should only receive a guardianship when sufficient evidence to supports a finding that she is incapacitated.

Ø Example where a guardianship is necessary due to ward’s minority

Example: Joyce is 13 years old and came to the United States with her father to live with her aunt. Joyce’s father recently died of cancer. There is nobody to take care of Joyce back in El Salvador. Joyce’s aunt petitioned the probate court to become Joyce’s guardian.

Analysis: A guardianship in this case is necessary because Joyce is a minor.

Ø Example where a guardianship is necessary because of ward’s inability to independently obtain medical care

Example: Jorge is 19 years old. He recently fled severe gang violence in his hometown in

Honduras. He now lives with his older brother in the United States. Jorge suffered significant trauma in Honduras and needs psychiatric care. However,

28 Iowa Code § 633.556. The petitioner bears the burden of establishing necessity by clear and convincing evidence. Id. § 633.551. 29 Id. § 633.552(2). 30 Id. § 633.3.





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Jorge speaks no English, and he cannot communicate well enough to find the correct doctor, let alone to set up an appointment. His older brother is bi-‐lingual and wishes to help. Jorge files a voluntary petition, asking that his brother be appointed his guardian.

Analysis: A guardianship is necessary in this case because Jorge cannot independently

obtain a necessity of life: medical care. If Jorge is unable to obtain medical care, physical injury or illness may occur.

Ø Example where guardianship is unnecessary because of potential ward’s

age and ability to function independently Example: Maria is 18 years old and was born in Mexico. Maria’s parents sent her to live

in the United States with her aunt when she was 8. Maria works as a dishwasher in a restaurant to support herself financially. Although Maria initially held a tourist visa when she arrived, that visa has long since expired, leaving Maria undocumented. Maria is increasingly concerned about her immigration status. She now seeks to have her aunt appointed as her guardian so that she can apply for SIJS.

Analysis: A guardianship is not necessary in this case. Maria is not a minor and has not

established that she cannot care for her own necessities of life or financial needs. Maria may still be eligible for different forms of immigration relief, such as deferred action.

To appoint a guardian, the court must also determine that the proposed guardian is

“qualified and suitable.”31 “Any natural person of full age who is a resident of this state” is qualified to be a guardian unless she is incompetent, or the court determines her to be otherwise unsuitable.32 In other words, a guardian must be 1) a person over 18 2) who is able to take care of her own personal safety and care for her own necessities of life 3) whom the court in its discretion has determined not to be “otherwise unsuitable.”33 SIJS-‐related guardianship petitions may sometimes raise issues pertaining to the suitability of the guardian. Common issues arise where 1) the proposed guardian is herself an undocumented immigrant, or 2) where a parent wishes to be appointed the guardian of her child.

i. Special Considerations for Appointing an Undocumented

Guardian The Iowa Probate Code imposes no citizenship or “qualified alien” requirement on

would-‐be guardians.34 As long as the petitioner can demonstrate that the proposed

31 Id. § 633.559. 32 Id. § 633.63. 33 See id. § 633.3 (23); see also id. § 633.3(18). 34 See Iowa Code §§ 633.63, 633.3 (23), 633.3(18).

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guardian is over 18, legally competent, and an Iowa resident (or non-‐resident for good cause shown), there is no statutory reason why an undocumented person is unqualified to serve as a guardian.35 Often, SIJS guardians are uncles, aunts, or siblings of the minor who are lawfully present in the United States and who have an established history of successfully attending to the necessities of life here. At other times, a family friend in this situation will volunteer to serve as the youth's guardian.

Appointing a guardian who lacks lawful immigration status, however, carries risks that may not be in the best interests of the ward. For example, people without lawful immigration status are at risk of being placed in removal proceedings and being removed from the country (i.e., being deported), which could prevent the guardian from ensuring that the needs of the ward are met. It may well be in the best interests of the ward to appoint a guardian committed to serving the ward’s needs, even though the guardian is without lawful immigration status. For example, if there is no person with lawful immigration status who has a relationship with the ward—and the undocumented person is already serving as a de facto guardian—then acknowledging that relationship and role would be in the ward's best interests.

ii. Special Considerations for Appointing One Parent as Guardian

Whether a parent can serve as a guardian is a

contentious issue. From one perspective, the parent inherently has the rights that the court would bestow by granting guardianship petition.36 Therefore, there is no need to appoint the parent as a guardian.

There may, however, be situations in which a minor would benefit from her parent

being designated as a guardian. For example, this would be the case in a custody dispute, when the parents are legally separated.37 Additionally, Iowa Code § 633.559 states that “parents of a minor, or either of them, if qualified and suitable, shall be preferred over all others for appointment as guardian.” In practice, in Iowa and elsewhere in the United States, parents of immigrant children have been appointed guardians in SIJS-‐related cases.

35 See Iowa Code §§ 633.63, 633.3 (23), 633.3(18); see also Matter of Estate of Ragan, 541 N.W.2d 859, 861 (Iowa 1995) (noting that the Iowa Probate Code fails to define “unsuitable”). 36 See In re Guardianship of Lehr, 87 N.W.2d 909, 912 (Iowa 1958) (stating that “[i]f both parents are living they are the natural guardians of their children.”). 37 See generally Northland v. Starr, 581 N.W.2d 210 (Iowa Ct. App. 1998), where a child was living with her mother and stepfather, and when the mother died, the father petitioned to be appointed as the child’s guardian. The court of appeals awarded custody to the father.

Iowa case law on this issue is limited to situations where a biological parent challenges the appointment of a non-‐parent guardian.

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d. Step 4: Issuing Orders or Denying Petitions for Immigrant Youth This section introduces the analysis a court should apply when evaluating whether to grant or deny a guardianship petition for an immigrant child who is ultimately seeking federal SIJS. If the Iowa court ultimately decides to grant the child's petition and issue a guardianship order, that order must be tailored to meet the SIJS statutory criteria.

Specifically, the court must present its findings about the child's need for a guardian with reference to facts that underscore abuse, abandonment, neglect, or similar basis under state law. Although the order does not need to include every fact relating to a finding of abuse, abandonment, neglect, or a similar basis under state law, it should provide ample grounds for USCIS to conclude that the petition was in fact made for the purpose of escaping abuse, abandonment, neglect, or a similar basis under state law.

The SIJS eligibility criteria (i.e., abuse, abandonment, neglect, or a similar basis

under state law) are designed to overlap with the criteria necessary to make judicial determinations about the care and custody of minors. Not surprisingly then, the criteria for appointing a guardian in Iowa probate court are largely coextensive with USCIS’s SIJS eligibility criteria. When including findings of abuse, abandonment, neglect, or a similar basis under state law in a guardianship order, the probate court does not overstep its jurisdiction. Because the decision to grant a guardianship petition is made without the use of a jury, the court is required to issue its findings in writing.38 Therefore, SIJS-‐related findings are not extraneous, but instead form an integral part of the guardianship order.

Three elements, if supported by the facts of the case, must be present for a state court order to form the basis for an SIJS petition. First, the order must declare the child “dependent on the state court.” Second, the order must state that reunification with one or both of the child’s parents is not viable due to abuse, abandonment, neglect, or similar basis under state law. Third, the guardianship order must state that it is in the child’s best interests not to be returned to her country of origin.

If USCIS receives an order containing these three findings, it will often examine the

petition to determine whether the state guardianship order was “bona fide” or whether it was made for the sole purpose of deriving an immigration benefit. It is therefore important that the Iowa court provide a detailed order that makes all the necessary findings, where appropriate. 38 Iowa R. Civ. P. 1.932.





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i. Declaring an Immigrant Youth Dependent on State Court

Section 101(a)(27)(j) of the Immigration and Nationality Act requires that special immigrant juveniles be declared dependent on a juvenile court located within the United States. Like the term "juvenile court," the phrase "declared dependent on a juvenile court” is best understood as a statutory term of art. Probate court orders appointing a guardian easily satisfy USCIS criteria for dependency on a state court. There is no requirement that the state court guardianship order contain the specific statement that the beneficiary is dependent upon the court.39 If the court exercises jurisdiction to make decisions about the care of the proposed ward, it has effectively declared the proposed ward dependent on the state court. If the court were to dismiss the petition, however, the child could not then apply for SIJS.40

ii. Finding That Reunification with One or Both Parents Is Not Viable Due to Abuse, Abandonment, Neglect, or a Similar Basis Under State Law

For SIJS purposes, the order must include the finding that reunification of the child

with one or both parents is not viable due to abuse, abandonment, neglect, or similar basis under state law.

Reunification with One or Both Parents Is Not Viable

Immigrant youth seeking SIJS must demonstrate abuse, abandonment, neglect, or a similar basis under state law by one or both parents to satisfy the statutory requirement of their petition.

Evidentiary Standards41 What Is Required What Is Not Required

• A significant separation • Determination that reunification will never be possible

• Formal termination of parental rights

In practice, this language simply means that an immigrant youth can be separated from one or both parents and still be eligible for SIJS.

Ø Situations in which reunification with both parents is not possible

Typically, an immigrant minor is unable to reunify with both parents.

39 Matter of Menjivar, No. A70117167, 1995 WL 17876291, *2 (I. & N. Dec. Jan. 3, 1995). 40 Id. 41 Immigrant Legal Res. Ctr., Chapter 3: Introduction and Overview to Special Immigrant Juvenile Status 3-‐4 (Jan. 2010), available at http://www.ilrc.org/files/2010_sijs-‐chapter_03-‐sijs_overview.pdf.

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Example: Fern’s parents decided to send her to the United States to live with her cousin, Sheila. Fern traveled alone at age 13 with a group of undocumented individuals and a coyote (i.e., a smuggler), who forced her to perform sexual favors along the way to pay for her passage into the United States. Fern’s parents were distraught when she recounted what happened to her, because they thought she would be able to work when she came to the United States to pay off the cost of the trip and send money home to support the family. Fern is angry with her parents and has been in the United States for 6 months. She has no intention of going to live with her family because she feels they sold her.

Analysis: Fern is unable to reunify with both of her parents in this case. Because of her

status as a minor, Fern may seek a guardianship order with an appropriate adult and apply for SIJS.

Ø Situations in which reunification is possible with only one parent

One-‐parent SIJS claims usually take one of two forms. An immigrant youth either

makes:

1) A “[c]laim of abuse, neglect, or abandonment against one parent while [he or she is] resid[ing] with the non-‐offending parent;” or

2) A “[c]laim of abuse, neglect, or abandonment against only one parent, while the child lives with a non-‐parent. The non-‐offending parent may still be in the child’s life.”42

Example: Melody is 17 and lives in the United States with her uncle, Carlos. Melody’s

father left her mother when she was 3 and does not play a role in her life. Although Melody’s father abandoned her, her mother cared for her until she came to the United States. Melody’s mother still resides in Honduras, but she has never abused Melody, remains a part of her life, and is affectionate towards her daughter. Melody petitioned the probate court to have her uncle appointed as her guardian.43 In addition to spending her whole life in an indigenous village, Melody has submitted an affidavit that she does not know how to use an ATM and would not feel comfortable communicating with medical professionals if she were hurt and went to the hospital.

Analysis: Melody may petition the court to make SIJS findings, and the fact that her

loving mother is still in her life does not make her ineligible for the

42 Angie Junck et al., ILRC Supervising Attorney, Immigrant Legal Resource Center Webinar: Advanced SIJS (Feb. 24, 2015). 43 Id.

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guardianship order. Statutory language and USCIS authoritative releases on SIJS indicate that reunification with one or both parents must not be viable. Melody still could benefit from a guardianship because she meets the definition of “incapacitated.” Because she spent her whole life in an indigenous village, she lacks the basic understanding of how to function in a modern, highly technological state. This is supported by Melody’s affidavit stating that she does not know how to use an ATM and would not feel comfortable communicating with medical professionals if she were hurt and went to the hospital.

Example: Gabriel has been sent to live with his aunt while his mother completes

alcohol rehabilitation. Eventually, Gabriel wishes to reunify with his mother. Gabriel’s father was deported for being the head of a gang.

Analysis: Even though Gabriel wishes to reunify with his mother, Gabriel may still

apply for SIJS because reunification with his mother is not currently viable due to her recovery efforts.44

Despite the language of the statute and USCIS guidance

interpreting “one or both parents,” two states, Nebraska and New Jersey, have interpreted the “one or both” language to mean “neither” parent.45 Nevertheless, USCIS and other state courts that have ruled on this question—including Iowa46—now recognize that a child who resides with one parent but cannot reunify with the other due to abuse, abandonment, neglect, or a similar basis under state law can qualify for SIJS. If a court wishes to issue a guardianship order to a single parent of an immigrant youth, the court may cite to USCIS authoritative releases, such as the brochure on the next page and other materials in Appendix F, for support.47

44 See Immigrant Legal Res. Ctr., supra note 41, at 3-‐4 (describing how the statute provides grounds for SIJS eligibility, “even while the child remains in the care of the other parent or while the court is actively trying to reunite the child with the other parent”). 45 See generally In re Interest of Erick M., 820 N.W.2d 639 (Neb. 2012). For a summary of this case, see Appendix D. 46 To see Iowa state court orders supporting this proposition, please visit the University of Iowa SIJS Clearinghouse at http://ailp.law.uiowa.edu/clearinghouse. 47 See In re Israel O., 182 Cal. Rptr. 3d 548, 554–55 (Cal. App. 2015) (citing to the brochure to support the “one or both” parents finding in contravention of In re Erick M.). In In re Israel, the court expressed how “considerable weight [is] accorded to an executive department’s construction of a statutory scheme it is entrusted to administer. The agency sources cited here [referring to the brochure], however, are not contained in formal regulations, and are not otherwise the product of a formal rule-‐making and notice and comment process. They are therefore not accorded the same ‘Chevron-‐style deference,’ but are nevertheless ‘entitled to respect’ . . . but only to the extent those interpretations have the ‘power to persuade. [T]here appears little doubt that USCIS currently interprets and applies section 1101(a)(27)(J) to include, as ‘SIJS eligible children’ those who may be living in this country ‘with a foster family, an appointed guardian, or the non-‐abusive parent.” Id. (internal citations omitted).

For more on cases that interpret the “one or both” language, see Appendix D at page 36.

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Reunification Is Not Viable Due to Abuse, Abandonment, Neglect, or a Similar Basis Under State Law

Findings of abuse, abandonment, neglect, or a similar basis under state law are

necessary to establish eligibility for SIJS under federal immigration law. Under Iowa statutory law, desertion constitutes a “similar basis” to abandonment.48 Thus, a probate court may find abuse, abandonment, neglect, or desertion to meet this requirement. Although these findings are normally not made in probate court, the court has jurisdiction to make the findings when the immigrant petitioner is requesting a guardianship. Therefore, if an Iowa court wishes to issue a guardianship order for an SIJS-‐eligible juvenile, the order should identify the Iowa standards for abuse, abandonment, neglect, or desertion and should incorporate those standards into the findings of fact. There is no need for the court to go beyond these threshold findings—for example, there is no need to conclude that the youth should be treated as a child in need of assistance, nor is there a requirement that parental rights be terminated. The chart that follows provides the Iowa statutory definition and case law interpretation of those standards for abuse, abandonment, neglect, and desertion.

48 Iowa Code Ann. § 232.2 (2015). To prove abandonment, a petitioner must prove intent to abandon. Desertion, in contrast, does not require a showing of intent to abandon. Unlike abandonment, however, desertion requires a six-‐month surrender of parenting, while abandonment does not have a specific time requirement. See Judge Alan Allbee’s Juvenile Benchbook for more information at Chapter 9, § 20(E)(20)(b)(1)(d).

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FINDING OF FACT STATUTORY DEFINITION IN IOWA

INTERPRETIVE EXAMPLES

ABUSE

Iowa Code Ann. § 232.68 “Child abuse” or “abuse” means: (1) Any nonaccidental physical injury, or injury

which is at variance with the history given of it, suffered by a child as the result of the acts or omissions of a person responsible for the care of the child.

(2) Any mental injury to a child's intellectual or

psychological capacity as evidenced by an observable and substantial impairment in the child's ability to function within the child's normal range of performance and behavior as the result of the acts or omissions of a person responsible for the care of the child, if the impairment is diagnosed and confirmed by a licensed physician or qualified mental health professional as defined in section 622.10.

(3) The commission of a sexual offense with or

to a child pursuant to chapter 709, section 726.2, or section 728.12, subsection 1, as a result of the acts or omissions of the person responsible for the care of the child. Notwithstanding section 702.5, the commission of a sexual offense under this subparagraph includes any sexual offense referred to in this subparagraph with or to a person under the age of eighteen years.

(4) (a) The failure on the part of a person

responsible for the care of a child to provide for the adequate food, shelter, clothing, medical or mental health treatment, supervision, or other care necessary for the child's health and welfare when financially able to do so or when offered financial or other reasonable means to do so.

(b) For the purposes of subparagraph division (a), failure to provide for the adequate supervision of a child means the person failed to provide proper supervision of a child that a reasonable and prudent person would exercise under similar facts and circumstances and the failure resulted in direct harm or created a risk of harm to

In the Interest of B.B., 440 N.W.2d 594, 596 (Iowa 1989) (citing In re In re De Rocher, 187 N.W.2d 730, 731 (Iowa 1971)). “[T]he provisions of Iowa Code chapter 232 are to be liberally construed to protect the welfare of the child.” Iowa Administrative Code r. 441–175.21 (232, 235A) “Nonaccidental physical injury” means an injury which was the natural and probable result of a caretaker's actions which the caretaker could have reasonably foreseen, or which a reasonable person could have foreseen in similar circumstances, or which resulted from an act administered for the specific purpose of causing an injury.

“Physical injury” means damage to any bodily tissue to the extent that the tissue must undergo a healing process in order to be restored to a sound and healthy condition or damage to any bodily tissue, which results in the death of the person who has sustained the damage.

In the Interest of M.D.B., 475 N.W.2d 654 (Iowa App. 1991). The Iowa Court of Appeals found a father abused his child where the mother reported bruises on the child’s hips and thighs twice to state authorities which were well-‐founded, the father threatened the child’s mother in front of the child on several occasions, and the father had previously been convicted of assault against the child’s mother.

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ABUSE (continued)

the child. (c) A parent or guardian legitimately practicing religious beliefs who does not provide specified medical treatment for a child for that reason alone shall not be considered abusing the child, however this provision shall not preclude a court from ordering that medical service be provided to the child where the child's health requires it.

(5) The acts or omissions of a person

responsible for the care of a child which allow, permit, or encourage the child to engage in acts prohibited pursuant to section 725.1. Notwithstanding section 702.5, acts or omissions under this subparagraph include an act or omission referred to in this subparagraph with or to a person under the age of eighteen years.

(6) An illegal drug is present in a child's body as a direct and foreseeable consequence of the acts or omissions of the person responsible for the care of the child.

(7) The person responsible for the care of a

child has, in the presence of the child, as defined in section 232.2, subsection 6, paragraph “p”, manufactured a dangerous substance, as defined in section 232.2, subsection 6, paragraph “p”, or in the presence of the child possesses a product containing ephedrine, its salts, optical isomers, salts of optical isomers, or pseudoephedrine, its salts, optical isomers, salts of optical isomers, with the intent to use the product as a precursor or an intermediary to a dangerous substance.

(8) The commission of bestiality in the

presence of a minor under section 717C.1 by a person who resides in a home with a child, as a result of the acts or omissions of a person responsible for the care of the child.

Hildreth v. Iowa Dep’t of Human Servs., 550 N.W.2d 157 (Iowa 1996). A father, following his religious convictions, struck his daughter three times in the buttocks with a wooden spoon after she failed to follow his directions to bathe for a church photograph. The girl’s mother noticed two red oval marks on the child’s buttocks a few hours later, and the school nurse identified the same marks the next morning. The marks took roughly five days to disappear. The Iowa Supreme Court held that the father’s conduct did not constitute abuse under § 232.68(2)(a) because it was not reasonably foreseeable that striking a limited area of the child’s buttocks would produce a physical injury. The court went on to note that red skin is not a physical injury, but it is evidence of a physical injury.

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ABUSE (continued)

(9) Knowingly allowing a person custody or control of, or unsupervised access to a child or minor, after knowing the person is required to register or is on the sex offender registry under chapter 692A for a violation of section 726.6.

(10) The person responsible for the care of

the child has knowingly allowed the child access to obscene material as defined in section 728.1 or has knowingly disseminated or exhibited such material to the child.

ABANDONMENT

Iowa Code § 232.2 “Abandonment of a child” means the relinquishment or surrender, without reference to any particular person, of the parental rights, duties, or privileges inherent in the parent-‐child relationship. Proof of abandonment must include both the intention to abandon and the acts by which the intention is evidenced. The term does not require that the relinquishment or surrender be over any particular period of time.

Iowa Code § 600A.19 “To abandon a minor child” means that a parent, putative father, custodian, or guardian rejects the duties imposed by the parent-‐child relationship, guardianship, or custodianship, which may be evinced by the person, while being able to do so, making no provision, or making only a marginal effort to provide for the support of the child or to communicate with the child.

Matter of Burney, 259 N.W.2d 322, 324 (Iowa 1977). Under § 232.2, abandonment is “a giving up of parental rights and responsibilities, accompanied by an intent to forgo them.” In Interest of Goettsche, 311 N.W.2d 104, 105 (Iowa 1981) (citation omitted). “Parental duty requires that a parent exert himself to take and maintain a place of importance in the child’s life”—merely paying child support is not enough. In Interest of Goettsche, 311 N.W.2d 104, 105 (Iowa 1981). A father, who no longer had custody of his two sons, visited his boys infrequently after the dissolution of his marriage and then stopped seeing them altogether. For instance, he did not speak to the boys when he saw them at a little league game. The father no longer called the children on the phone, but he did send them birthday and holiday cards with small monetary gifts. He refrained from attending parent teacher conferences. He

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ABANDONMENT (continued)

also stopped paying child support one year after the divorce, with the exception of a few payments. The father claimed he did not visit his sons to avoid “friction” which his wife, causing hard to the boys. The Iowa Supreme Court held that the father had the requisite intent for his actions to constitute abandonment of his children under Iowa Code § 600A. The Court held that proof of abandonment does not require showing total desertion; nonpayment of child support is probative evidence of abandonment; and that “parental responsibilities require affirmative parenting to the extent it is practical and feasible in the circumstances.” The Court found the father stopped engaging the active parenting required in a parent-‐child relationship when he failed to maintain communication and association with his boys. State v. Wilson, 287 N.W.2d 587 (Iowa 1980). A mother left her 18-‐month old child alone in her basement apartment with one door locked and another door unlocked for up to 90 minutes. She left the TV running while she went to use a pay phone to call a boyfriend or friends. In her absence, the child wet his diaper and tried to eat an unpeeled orange. The Iowa Supreme Court held that the mother’s conduct did not rise to the level of abandonment because her absence was temporary and she intended and did return.

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NEGLECT Iowa Code § 726.3 A person who is the father, mother, or some other person having custody of a child, or of any other person who by reason of mental or physical disability is not able to care for the person’s self, who knowingly or recklessly exposes such person to a hazard or danger against which such person cannot reasonably be expected to protect such person’s self…

In re Interest of D.W., 385 N.W.2d 570 (Iowa 1986). Interpreting neglect for the purposes of CINA under § 232.2(6)(b), the Iowa Supreme Court held that a mother neglected her child by leaving part of the television uncovered for a length of time, allowing the child to receive an electrical shock. Some form of physical injury usually accompanies the finding of neglect. In re J.S., 846 N.W.2d 36 (Iowa 2014). Interpreting neglect for the purposes of CINA under § 232.2(6)(b), the Iowa Supreme Court held that general statements that a mother is addicted to methamphetamine are not enough to constitute neglect, particularly where the children are generally well-‐cared for by a grandparent. Even though the child’s own mother wanted the grandparent to supervise her visits with her children, there was no evidence of an imminent likelihood of physical harm to the child.

DESERTION Iowa Code Ann. § 232.2 (14) “Desertion” means the relinquishment or surrender for a period in excess of six months of the parental rights, duties, or privileges inherent in the parent-‐child relationship. Proof of desertion need not include the intention to desert, but is evidenced by the lack of attempted contact with the child or by only incidental contact with the child.

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Ø Example of a child eligible for SIJS due to abuse

Example: Jean Paul is a 16-‐year old Sudanese boy who came to the United States with his mother on her student visa. His mother’s student visa expired three years ago, but Jean Paul and his mother remained in Iowa. When Jean Paul lived in Sudan, his father would hit him whenever he was angry or frustrated. Jean Paul often had visible bruises and even suffered a broken wrist trying to shield himself from his father. In fact, this is one reason Jean Paul and his mother moved to the United States. Jean Paul’s neighbor has often assisted the family in adjusting to America, and Jean Paul voluntarily petitions to have the neighbor appointed as his guardian.

Analysis: Under Iowa statutes and case law, Jean Paul was subjected to physical abuse

by his father. Because his mother overstayed her student visa, the family is now undocumented. If the probate court details the abuse Jean Paul suffered in a guardianship order, then he would meet each of the requirements for SIJS under federal immigration law.

Ø Example of a child not eligible for SIJS due to abandonment

Example: Ana and her mother came to the United States from Guatemala to join Ana’s father. The family lived together in the United States for about one month before her father was removed from the country, and her mother was also placed in removal proceedings. In an attempt to protect the child in the event of her deportation, the mother sought to have a guardian appointed.

Analysis: While Ana may well qualify for a guardianship, she is not eligible for SIJS.

When a child seeks SIJS on grounds of abandonment, USCIS requires that the abandonment be intentional and not the result of involuntary separation, such as by deportation.49

Ø Example of a child eligible for SIJS due to neglect

Example: Darwin is 15 years old and from Guatemala. Last year, Darwin’s parents sent him to the United States—unaccompanied—to start a better life. Darwin made the journey atop a freight train known as the Beast.50 It is well known that vulnerable children travel atop the Beast train. As a result, children who ride the train are often the victims of robbery and assault. It is also common for children to suffer life-‐long debilitating injuries from falling off the train. Luckily, Darwin arrived in the United States unharmed and now lives with his uncle here in Iowa. He remains in contact with his parents, and they have a good relationship.

49 In re [IDENTIFYING INFORMATION REDACTED BY AGENCY], 2009 WL 6521113 (DHS October 30, 2009). 50 Wilson Sayre, Riding “The Beast” Across Mexico to the U.S. Border, npr (June 5, 2014, 10:44AM), http://www.npr.org/blogs/parallels/2014/06/05/318905712/riding-‐the-‐beast-‐across-‐mexico-‐to-‐the-‐u-‐s-‐border.

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Analysis: Even though Darwin has loving parents, they may have criminally neglected

their child. That is, Darwin’s parents “knowingly or recklessly expose[d] [Darwin] to a hazard or danger against which [Darwin] cannot reasonably be expected to protect oneself” by sending him on such a dangerous journey alone.51 Even though Darwin’s parents are not on trial in a probate guardianship proceeding, and it is not necessary to find them criminally liable, findings that their conduct rose to such a standard may help establish that the guardianship is necessary.

Ø Example of a child eligible for SIJS due to desertion

Example: Alma and her mother moved from Honduras to Iowa in 2012. Alma’s mother passed away three months later. Alma’s father had come to the United States with Alma and her mother, but he struggled to find work in Iowa that would allow him to support the family. As a result, he moved to California around nine months ago to work in an orchard, while Alma remained in Iowa with her grandparents. Unfortunately, Alma’s father has barely made enough money to support himself, let alone send money to Alma and her grandparents. Because her father cannot afford a cell phone, Alma has not heard from her father in the last six months, except via a card at Christmas and for her 14th birthday in February.

Analysis: Alma’s father has deserted Alma under the definition of “desertion” in the

Iowa Code. Even though there is no evidence that he has intended to relinquish his parental rights and responsibilities, his move across the country, lack of parental contact, and inability to send any money to support Alma constitutes desertion under Iowa law. The court has sufficient evidence to support a finding that reunification with Alma’s father is not viable due to “a similar basis under state law,” i.e., desertion.

iii. Finding That It Is Not in the Best Interests of the Child to

Return to His or Her Country of Origin To form the basis of a successful SIJS petition, the state court order must also state

that it is not in the child’s best interests to return to his or her country of origin. Again, this type of finding is not the normal practice of Iowa probate courts. The court, however, has the jurisdiction to make the findings and is in the best position to evaluate the best interests of the immigrant youth petitioning for a guardianship. Simply appointing a guardian is not sufficient to demonstrate to USCIS that it is in the child’s best interests to remain in the United States, even where state law only allows the court to appoint a guardian where the guardianship is in the best interests of the child.52 Rather, the state

51 Iowa Code § 726.3 (2015). 52 See generally In re [IDENTIFYING INFORMATION REDACTED BY AGENCY], 2012 WL 9161465 (INS Oct. 15, 2012).

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court order must explain why it is in the best interests of the child to remain in the United States, under the guardian’s care. The best practice is for the state court to apply state standards in determining the best interests of the child.

Iowa courts have not directly

addressed what factors to consider in determining the best interests of a child in the context of the child’s possible return to her country of origin. Under Iowa Code § 232.116(2), however, the Iowa Court of Appeals found that termination of a father’s parental rights was in the best interests of a child when the father was the subject of a removal order and was being deported to another country.53

In accordance with the current statutory text, the court said that the factors

determining the best interests of children in termination proceedings include: 1) their safety, first and foremost; 2) the best placement for furthering long-‐term nurturing and growth; 3) ensuring the physical, mental, and emotional health of the child; and 4) a sense of permanency. 54 In In the Interest of B.B., the court also noted “a child’s best interests include not only proper care and treatment but also educational opportunities.”55

In addition to the termination of parental rights statute, judges may also wish to

consult the seven criteria that the United Nations Committee on the Rights of the Child developed for evaluating the best interests of immigrant youth. While some of the criteria overlap with the factors in the Iowa parental termination statute, others are more targeted toward an immigrant’s unique circumstances. Those factors are: “1) the child’s views; 2) the child’s identity; 3) preservation of the family environment and maintaining relations; 4) the care, protection, and safety of the child; 5) a situation of vulnerability; 6) the child’s right to health; and 7) the child’s right to education.”56

53 Iowa Code § 232.116(2); see also In re J.B., No. 12-‐2253, 2013 WL 541863, at *4–5 (Iowa Ct. App. Feb. 13, 2013). 54 Id. 55 In the Interest of B.B., 440 N.W.2d 594, 596–97 (Iowa 1989) (citing In re G.R., 348 N.W.2d 637, 631 (Iowa 1984)). 56 Jennifer Nagda & Maria Woltjen, Best Interests of the Child Standard: Bringing Common Sense to Immigration Decisions, in Big Ideas 2015—Pioneering Change: Innovative Ideas for Children and Families 107 (2015) (citing United Nations Committee on the Rights of the Children, General Comment No. 14, ¶¶ 48–79 (2013)).

Iowa—Best Interests of the Child Factors: Ø Safety Ø Best placement for furthering long-‐

term nurturing and growth Ø Ensuring physical, mental, and

emotional health Ø Sense of permanency Ø Educational opportunities

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When making a best interests determination, courts generally find the following evidence sufficient to conclude that it is in the immigrant youth’s best interest to remain in the United States:

Ø An interview with a child that shows there are no acceptable family members to live

with in the home country57 Ø An affidavit from a child or relative indicating that the child left her home country

because of dangerous conditions, such as gang violence, sexual assault, poverty, etc. Ø A foreign social service agency report that shows the child’s home in the country of

origin is not appropriate58 Ø A country conditions report showing a lack of educational opportunities in the child’s

country of origin. Because best interests determinations are individualized, the evidence above is by

no means the only way to support this finding of fact.59 The following evidence would be insufficient to conclude that it is in the immigrant

youth’s best interest to remain in the United States:

Ø A child from South Korea who overstayed a student visa, has loving parents in South Korea, and whose desire to remain in the United States is based solely on his parents’ desire for him to pursue job opportunities in the United States.

Ø An affidavit from a parent who is in the child’s country of origin stating that the parents are neglecting the child. Again, because of the individualized nature of a best interests determination, this

evidence may not necessarily be unacceptable given the specific facts the immigrant youth presented in court.

Ø Example of child benefiting from a legal guardianship despite the

presence of a caring, functional parent in his life

Example: Henry, a 14-‐year old boy, needs psychological care and petitions to have a relative appointed as his guardian. Henry’s mother is undocumented and lives with him in Iowa, while his father works overseas. Henry’s mother does not feel comfortable or capable of placing Henry with a suitable psychologist because of her lack of familiarity with mental health and advanced medicine. A close family friend, who is a U.S. citizen, has offered to be Henry’s guardian and assist him in receiving the psychological care that he needs.

57 See In re [IDENTIFYING INFORMATION REDACTED BY AGENCY], 2012 WL 8593695 (INS May 14, 2012); Immigrant Legal Res. Ctr., Chapter 3: Introduction and Overview to Special Immigrant Juvenile Status 3-‐7 (Jan. 2010), available at http://www.ilrc.org/files/2010_sijs-‐chapter_03-‐sijs_overview.pdf. 58 Id. 59 See Nagda & Woltjen, supra note 56, at 111 (describing best interests determinations as an “individualized” standard).

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Analysis: The family friend in this case is likely in a better position to help Henry by having the ability to make decisions about Henry’s psychological care. The judge in his or her order can explain why the guardian is better suited to arrange for these needs than either of the child’s parents or the child himself. This helps to satisfy the “best interest” requirement of USCIS and to justify granting the guardian the power to arrange for the child’s medical care.

iv. Denying Petitions When There Is Insufficient Evidence

The decision whether to issue an order or deny a petition turns on a petitioner’s

submission of evidence. The three previous sections include examples of evidence that may be insufficient to support the required factual findings in those sections.60 Additionally, Appendix A includes a model order denying a petition for an immigrant youth seeking SIJS.61

Upon receipt of a petition with insufficient evidence to support the required SIJS

findings of fact, the court is likely to deny the petition in one of two ways. First, the court can provide a form denial by simply stating: “The petition is denied.” A judge may find this approach most useful in instances when the court has not adjudicated the petitioner dependent on the state court (e.g., when the court denies a guardianship petition). Second, the court can provide an extensive order detailing the evidence provided by the petitioner. The detailed order would explain how the evidence is insufficient to meet the state standards relating to the possibility of reunification with a parent; abuse, abandonment, neglect, or desertion; or the best interests of the child. This type of denial may be more useful when the petitioner seemingly meets the standards for multiple required factual findings, but has provided insufficient evidence for the court to make at least one of the findings.

IV. CONCLUSION In denying or issuing the SIJS findings of fact, judges may refer to the model orders

in the appendix and sample orders available on the online SIJS clearinghouse as a reference point. The appendices also contain further information on SIJS-‐related case law, statutes, and regulations.

60 See supra Parts IV.d.i–iii. 61 See infra Appendix A.

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APPENDIX A: Model SIJS State Court Orders

I. MODEL STATE COURT ORDER WITH FINDINGS OF FACT FOR SIJS PETITION

This model order is derived from an order written by the Fifth Judicial District and includes suggestions regarding the detailed findings that are required.

IN THE IOWA DISTRICT COURT FOR [***] COUNTY IN THE MATTER OF THE GUARDIANSHIP OF [***]

(MINOR)

GCPR [***] ORDER REGARDING MINOR’S ELIGIBILITY FOR SPECIAL IMMIGRANT JUVENILE STATUS

NOW, to wit, on this [***] day of [***] 2015, this matter comes before the Court on

motion of the petitioner, [***], by and through [his/her] attorney [***] for a special order

regarding the minor ward [***]’s eligibility for Special Immigrant Juvenile Status. Upon

review of the evidence in the petition and the motion to the Court, the Court hereby grants

the order and makes the following findings:

THE COURT FINDS that the minor [***] was born in [***] on [***], is under the age

of twenty-‐one, and is a citizen and national of [***].

THE COURT FURTHER FINDS that this Court has jurisdiction under Iowa law “to

make judicial determinations about the custody and care of juveniles” within the meaning

of Section 101(a)(27)(J) of the Immigration and Nationality Act (“INA”), 8 U.S.C. §

1101(a)(27)(J), and 8 C.F.R. §204.11(a). [***] remains under this Court’s jurisdiction.

THE COURT FURTHER FINDS that [***] is dependent upon the Court or has been

legally committed to, or placed under the custody of, an agency or department of a State, or

an individual or entity appointed by a state or juvenile Court located in the United States

within the meaning of INA Section 101(a)(27)(J), 8 U.S.C. § 1101(a)(27)(J). The Court has

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ordered the appointment of [***] as Guardian over [***]. The guardianship will continue

until the juvenile reaches age 21 or until the Guardian, in an annual report, finds that the

minor is able to provide for his or her own care and requests that this Court terminate the

guardianship.

THE COURT FURTHER FINDS that reunification with one or both of [***]’s parents is

not viable due to abuse, abandonment, neglect, or a similar basis under state law under INA

section 101(a)(27)(J), 8 U.S.C. § 1101(a)(27)(J). Specifically, the Court finds that

reunification with [***]’s [mother/father/parents] is not viable based on the fact that the

minor was [abused, abandoned, neglected, or deserted]. Evidence of the [abuse,

abandonment, neglect, or desertion] is as follows: [include specific factual evidence

here. When including such evidence, you may look and cite to the meaning of abuse,

abandonment, neglect, and/or desertion under Iowa law.]. (Exhibit [***]).

THE COURT FURTHER FINDS that it is not in [***]’s best interest to be returned to

[his/her] parents previous country of nationality or country of last habitual residence –

[***] – within the meaning on Section 101(a)(27)(J) of the INA, 8 U.S.C. § 1101(a)(27)(J), 8

C.F.R. 204.11(d)(2)(iii). It is in [***]’s best interest to remain in the United States because

[provide individualized reason for best interests determination. Reasons may

include, but are not limited to: no competent family members could care for the child

in the home country, dangerous home country conditions that are specifically

affecting the minor, assessment of child’s potential future opportunities in the

United States versus in the country of nationality, etc.].

_________________________________________ JUDGE [***] JUDICIAL DISTRICT OF IOWA

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II. MODEL COURT ORDER DENYING PETITION FOR IMMIGRANT YOUTH

IN THE IOWA DISTRICT COURT FOR [***] COUNTY IN THE MATTER OF THE GUARDIANSHIP OF [***]

(MINOR)

GCPR [***] ORDER REGARDING MINOR’S ELIGIBILITY FOR SPECIAL IMMIGRANT JUVENILE STATUS

Petitioner’s motion for a special order regarding his/her eligibility for Special

Immigrant Juvenile Status is DENIED.

[Judges may choose to include the factual findings with sufficient evidentiary

support in the order, as well as the findings the petitioner failed to satisfy. Judges

may select from the following language as it applies to their case.]

THE COURT FINDS that the petitioner [***] was born in [***] on [***], is under the

age of twenty-‐one, and is a citizen and national of [***].

(OR)

THE COURT FINDS that the petitioner [***] was born in [***] on [***], and is a

citizen and national of [***]. However, the court is unable to find the petitioner meets the

statutory age requirement, because [he/she] is over the age of twenty-‐one.

THE COURT FURTHER FINDS that this Court has jurisdiction under Iowa law “to

make judicial determinations about the custody and care of juveniles” within the meaning

of Section 101(a)(27)(J) of the Immigration and Nationality Act (“INA”), 8 U.S.C. §

1101(a)(27)(J), and 8 C.F.R. §204.11(a). [***] remains under this Court’s jurisdiction.

THE COURT FURTHER FINDS that [***] is dependent upon the Court or has been

legally committed to, or placed under the custody of, an agency or department of a State, or

an individual or entity appointed by a state or juvenile Court located in the United States

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within the meaning of INA Section 101(a)(27)(J), 8 U.S.C. § 1101(a)(27)(J). The Court has

ordered the appointment of [***] as Guardian over [***]. The guardianship will continue

until the juvenile reaches age 21 or until the Guardian, in an annual report, finds that the

minor is able to provide for his or her own care and requests that this Court terminate the

guardianship.

(OR)

THE COURT FURTHER FINDS that [***] is not dependent upon the Court and has not

been legally committed to, or placed under the custody of, an agency or department of a

State, or an individual or entity appointed by a state or juvenile Court located in the United

States within the meaning of INA Section 101(a)(27)(J), 8 U.S.C. § 1101(a)(27)(J). The Court

has denied the appointment of [***] as Guardian over [***]. Because the proposed ward is

not a minor, petitioner had the burden of proving by clear and convincing evidence that the

proposed ward is a person whose decision-‐making capacity is so impaired that the person

is unable to care for the person’s personal safety or attend to or provide the necessities of

life such as food, shelter, clothing, or medical care, without which physical injury would

occur. Petitioner has not presented sufficient evidence to meet this standard. [Explain

reasoning using the facts.].


not viable due to abuse, abandonment, neglect, or a similar basis under state law under INA

section 101(a)(27)(J), 8 U.S.C. § 1101(a)(27)(J). Specifically, the Court finds that

reunification with [***]’s [mother/father/parents] is not viable based on the fact that the

minor was [abused, abandoned, neglected, and/or deserted]. Evidence of the [abuse,

abandonment, neglect, and/or desertion] is as follows: [include specific factual

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evidence here. When including such evidence, you may look and cite to the meaning

of abuse, abandonment, neglect, and/or desertion under Iowa law.]. (Exhibit [***]).

(OR)


viable, in contravention of INA section 101(a)(27)(J), 8 U.S.C. § 1101(a)(27)(J). Specifically,

the Court finds that reunification with [***]’s [mother/father/parents] is viable because

[include factual basis for finding there was no abuse, abandonment, neglect, or

desertion.]

THE COURT FURTHER FINDS that it is not in [***]’s best interest to be returned to



C.F.R. 204.11(d)(2)(iii). It is in [***]’s best interest to remain in the United States because

[provide individualized reason for best interests determination. Reasons may

include, but are not limited to: no competent family members could care for the child

in the home country, dangerous home country conditions that are specifically

affecting the minor, assessment of child’s potential future opportunities in the

United States versus in the country of nationality, etc.].

(OR)

THE COURT FURTHER FINDS that it is in [***]’s best interest to be returned to



C.F.R. 204.11(d)(2)(iii). It is in [***]’s best interest to return to [his/her] country of

[origin/last habitual residence] because [provide individualized reason for best

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interests determination. Reasons may include, but are not limited to: additional

research needed here].

_________________________________________ JUDGE [***] JUDICIAL DISTRICT OF IOWA

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APPENDIX B: Examples of SIJS State Court Orders For samples SIJS state court orders, please visit http://ailp.law.uiowa.edu and click on the “Special Immigrant Juvenile Status” tab.

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APPENDIX C: Model Notice by Publication for Parents Outside the United States

I. In English

IN THE IOWA DISTRICT COURT FOR _______ COUNTY

IN THE MATTER OF THE GUARDIANSHIP OF ________________________ (MINOR)

Probate No. _______________ ORIGINAL NOTICE OF APPOINTMENT OF GUARDIAN (VOLUNTARY)

TO THE PARENTS OF ____________________________ You are hereby notified that there is now on file in the office of the Clerk of the above Court, a petition for Appointment of Guardian in the above-‐titled action, a copy of which petition is attached hereto. The Petitioner’s Attorney is [***]. You are further notified that unless within 20 days of service of this Original Notice upon you, you serve, and within a reasonable time thereafter file a motion or answer in the Iowa District Court for ______ County at the ______ County Courthouse in ______, Iowa, judgment by default will be rendered against you for the relief demanded in the Petition. The _______ County Courthouse is located at: ________ County Courthouse [***Provide Address] [***Provide Address]

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II. In Spanish EN EL TRIBUNAL DE DISTRITO DE IOWA PARA ________ COUNTY

EN CUESTION DE LA TUTELA DE ________________________ (MENOR DE EDAD)

Numero de Legalización:______ ANUNCIO ORIGINAL TUTELA (VOLUNTARIAMENTE)

PARA LOS PADRES DE _____________________________

Se le notifica que actualmente existe en los archivos de la oficina del Secretario de la Corte, anteriormente mencionado, una petición de designación de tutor en la acción del titulo anteriormente mencionado. Adjunto encuentre una copia de dicha petición. La abogada del peticionario es [***].

Se le notifica que al menos de 20 días de servicio de este aviso original sobre usted desde que recibe dicha notificación y en un plazo razonable a partir de entonces presentar una moción o respuesta en el Tribunal de Distrito de Iowa para el Condado de ______ en la Corte del Condado de ______ en ________, Iowa. Sentencia en rebeldía se representara en su contra por el alivio demandado en la petición.

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APPENDIX D: SIJS Case Law

The following cases relate to the requirement that a petitioner show that she cannot reunify with “one or both” of her parents. Although Nebraska and New Jersey have interpreted “one or both” to mean reunification is viable with “neither” of petitioner’s parents, the majority of state courts rely on the plain meaning of the statute and USCIS guidance. In doing so, they interpret the language to mean reunification is not viable with at least one parent. These cases were referenced in the ILRC’s Advanced Webinar on Special Immigrant Juvenile Status.

KEY CASES ACCEPTING ONE-‐PARENT SIJS (IN ACCORDANCE WITH USCIS GUIDANCE AND STATUTORY AUTHORITY)

Ø Matter of Mario S., 2012 Slip Op 22336 (N.Y. Fam. Ct. Nov. 21. 2012)

Mario was brought to the U.S. when he was only six-‐months old. He was adjudicated delinquent for graffiti-‐related offenses, placed on probation, and then placed in state custody after he violated probation. Mario’s case plan involved reunification with his mother upon release, and he was in fact returned to her custody. Mario’s father had been deported due to domestic abuse and made no substantial effort to maintain a relationship with Mario or provide him with financial support. The court found that it was not in Mario’s best interests to return to Mexico due to the length of time he had resided in the U.S. and the fact that there was no one to care for him in Mexico. Furthermore, the court stated that the state’s court role is limited to making factual findings, and it is not the state court’s role to determine a petitioner’s intent in seeking SIJS, whether that child might someday pose a threat to public safety, or whether USCIS might ultimately grant or deny an application for adjustment of status.

Ø Marcelina M.G. v. Israel S., 112 A.D.3d 100 (N.Y. Fam. Ct. 2013)

Susy, the minor, had initially filed for her uncle to be appointed as her guardian—although her mother lived nearby and saw her on a regular basis. The petition alleged that reunification was not viable with her father due to neglect and abandonment. She also initially alleged that reunification was not viable with her mother because she had neglected and abandoned her by leaving her in Honduras and by failing to provide her with any substantial financial support since she arrived in the U.S. Her mother initially supported the petition, but later filed a petition for custody, which was granted by the family court. The family court then denied the motion for SIJS findings, stating that it was a strained reading of the statute to interpret it to mean that SIJS findings could be made when the child was residing with one parent. On appeal the court looked at the plain meaning of the statute and held that the one or both language provides SIJS eligibility “where reunification with just one parent is not viable.”62

62 Marcelina M.G. v. Israel S., 112 A.D.3d 100, 110 (N.Y. Fam. Ct. 2013).

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Ø In re Israel O., 233 Cal. App. 4th 279 (Cal. App. 1st Dist. 2015)

Israel was adjudicated delinquent for receiving stolen property. He was returned to his mother’s home, subject to the conditions of his probation. He had no memory of his father and had never received any physical or emotional support from him, although he did have limited telephone contact with him. Israel petitioned the court for an order making the necessary SIJS findings, alleging that his father had abandoned him and that if he was returned to Mexico, he would have no one to care for him. The juvenile court found that Israel’s father had indeed abandoned him, but that the court could not make SIJS findings where return to one parent remained feasible. The appellate court found that the statute’s language was ambiguous, but looked to agency interpretation and found little doubt that USCIS interprets the federal statute to include children residing with a non-‐abusive parent. The appellate court found the agency interpretation persuasive and consistent with the purpose of the SIJS statute, and it held that an eligible minor for SIJS includes a juvenile for whom a safe and suitable parental home is available in the United States. The case was remanded to consider whether or not it was in Israel’s best interest to be returned to Mexico.

Ø Eddie E. v. Superior Court, No. G049637, 2015 Cal App. LEXIS 136 (Cal. Ct. App. Feb. 11, 2015)

Eddie was brought to the U.S. when he was 5. He was adjudicated delinquent for unlawfully taking a vehicle and related offenses and was referred to ICE by the probation department, placed in removal proceedings, and later reunified with his father. His mother had abandoned the family when he was 8 and had later died. The juvenile court considering Eddie’s request for SIJS findings found that Eddie did not satisfy the second prong because Eddie must prove that he could not reunify with both his parents. Additionally, the court held that Eddie’s inability to reunify with his mother was not due to abandonment, but death. The court further held that a fresh start in Mexico would be in his best interests given his U.S. law violations. On appeal, the court held that the plain language of the statute means that a petitioner can satisfy this finding by showing an inability to reunify with one parent due to abuse, neglect, or abandonment. The appellate court explicitly rejected the reasoning in In re Erick M. and the H.S.P. case, finding that the court fundamentally misunderstood the role of the state court in the SIJS process. The appellate court further found that Eddie’s mother did abandon him and that her subsequent death did not render the abandonment ineffective. Finally, the court held that the evidence supported a finding that it was in his best interests to remain in the United States. The court specifically noted that he had lived in the U.S. his entire life and had no one to turn to in Mexico. The appellate court directed the lower court to issue an order making the necessary SIJS findings.

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KEY CASES REJECTING ONE-‐PARENT SIJS (IN CONTRAVENTION OF USCIS GUIDANCE AND STATUTORY AUTHORITY)

Ø In re Interest of Erick M., 284 Neb. 340, 820 N.W.2d 639 (2012)

Erick was adjudicated delinquent and committed to the care and custody of a state agency. A petition for SIJS findings was made alleging that Erick’s father abandoned him, but the petition did not allege an inability to reunify with his mother, who was participating in the delinquency proceedings. The lower court found that the facts failed to establish that reunification with Erick’s mother was not possible due to abuse, neglect, or abandonment—and on that basis held that the reunification element was not met. In affirming the holding, the Nebraska Supreme Court stated that “when ruling on a petitioner’s motion for an eligibility order under Section 1101(a)(27)(J), a court should generally consider whether reunification with either parent is feasible.”63

Ø H.S.P. v. J.K., 87 A.3d 255 (N.J. Super. App. Div. Mar. 27, 2014), cert. granted, 218 N.J. 532 (N.J. July 28, 2014)

An uncle filed a custody petition seeking custody of his 17-‐year old nephew. A request for SIJS findings was also included, based on facts alleging that he had been abandoned by his father, neglected by his mother, and that it was not in his best interests to return to India. The lower court found insufficient evidence that the minor was neglected or abandoned by either of his parents. The appellate court also considered whether the reunification element was met, and stated, “[w]e understand the [one] or both phrase to require that reunification with neither parent is viable because of abuse, neglect, or abandonment of the juvenile.”64 Furthermore, the court expressed concern that the only reason the uncle invoked its jurisdiction was to obtain legal immigration status for his nephew.

63 In re Interest of Erick M., 820 N.W. 2d. 639, 648 (Neb. 2012). 64 H.S.P. v. J.K., 87 A.3d 255, 266 (N.J. Super. Ct. App. Div. Mar. 27, 2014).

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APPENDIX E: SIJS Federal Statutes and Regulations FEDERAL STATUTES Definition of Special Immigrant Juvenile 8 U.S.C. § 1101(a)(27)(J); INA § 101(a)(27)(J) INA § 101(a) . . . (27) The term “special immigrant” means— (J) an immigrant who is present in the United States—

(i) who has been declared dependent on a juvenile court located in the United States or whom such a court has legally committed to, or placed under the custody of, an agency or department of State, or an individual or entity appointed by a State or juvenile court located in the United States, and whose reunification with 1 or both of the immigrant’s parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law;

(ii) 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; and

(I) no juvenile court has jurisdiction to determine the custody

status or placement of an alien in the custody of the Secretary of Health and Human Services unless the Secretary of Health and Human Services specifically consents to such jurisdiction; and

(II) no natural parent or prior adoptive parent of any alien provided

special immigrant status under this subparagraph shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this chapter

The copy of the statute is also available online in 8 U.S.C. § 1101(a)(27)(J) at https://www.law.cornell.edu/uscode/text/8/1101.

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FEDERAL REGULATIONS ***CAUTIONARY REMINDER: The Department of Homeland Security, and specifically USCIS, has not yet amended these provisions to comport with statutory changes in the 2008 TVPRA.65 For updated interpretations of this provision today, please refer to Part IV.d. Regulation Detailing Eligibility Requirements to Petition USCIS for Special Immigrant Juvenile Status 8 C.F.R. § 204.11 § 204.11 Special immigrant status for certain aliens declared dependent on a juvenile court (special immigrant juvenile)

(a) Definitions.

Eligible for long-‐term foster care means that a determination has been made by the juvenile court that family reunification is no longer a viable option. A child who is eligible for long-‐term foster care will normally be expected to remain in foster care until reaching the age of majority, unless the child is adopted or placed in a guardianship situation. For the purposes of establishing and maintaining eligibility for classification as a special immigrant juvenile, a child who has been adopted or placed in guardianship situation after having been found dependent upon a juvenile court in the United States will be considered to be eligible for long-‐term foster care. Juvenile court means a court located in the United States having jurisdiction under State law to make judicial determinations about the custody and care of juveniles.

(b) Petition for special immigrant juvenile. An alien may not be classified as a special immigrant juvenile unless the alien is the beneficiary of an approved petition to classify an alien as a special immigrant under section 101(a)(27) of the Act. The petition must be filed on Form I-‐360, Petition for Amerasian, Widow(er) or Special Immigrant. The alien, or any person acting on the alien’s behalf, may file the petition for special immigrant juvenile status. The person filing the petition is not required to be a citizen or lawful permanent resident of the United States.

(c) Eligibility. An alien is eligible for classification as a special immigrant under section

101(a)(27)(J) of the Act if the alien:

(1) Is under twenty-‐one years of age;

(2) Is unmarried; 65 William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub. L. 110-‐457, 122 Stat. 5044.

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(3) Has been declared dependent upon a juvenile court located in accordance with state law governing such declarations of dependency, while the alien was in the United States and under the jurisdiction of the court (outdated since TVPRA of 2008);

(4) Has been deemed eligible by the juvenile court for long-‐term foster care

(outdated since TVPRA of 2008);

(5) Continues to be dependent upon the juvenile court and eligible for long-‐term foster care, such declaration, dependency or eligibility not having been vacated, terminated, or otherwise ended (outdated since TVPRA 2008)66; and

(6) Has been the subject of judicial proceedings or administrative

proceedings authorized or recognized by the juvenile court in which it has been determined that it would not be in the alien’s best interest to be returned to the country or nationality or last habitual residence of the beneficiary or his or her parent or parents; or

(7) On November 29, 1990, met all the eligibility requirements for special

immigrant juvenile status in paragraphs (c)(1) through (c)(6) of this section, and for whom a petition for classification as a special immigrant juvenile is filed on Form I-‐360 before June 1, 1994.

(d) Initial documents which must be submitted in support of the petition.

(1) Documentary evidence of the alien’s age, in the form of a birth certificate,

passport, official foreign identity document issued by a foreign government, such as a Cartilla or a Cedula, or other document which in the discretion of the director establishes the beneficiary’s age; and

(2) One or more documents which include:

(i) A juvenile court order, issued by a court of competent jurisdiction located in the United States, showing that the court has found the beneficiary to be dependent upon the court;

(ii) A juvenile court order, issued by a court of competent jurisdiction located in the United States, showing that the court has found the beneficiary eligible for long-‐term foster care; and

66 USCIS should amend requirements (3)–(5) to reflect the effect that TVPRA had on the underlying statutory framework for SIJS.

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(iii) Evidence of a determination made in judicial or administrative proceedings by a court or agency recognized by the juvenile court and authorized by law to make such decisions, that it would not be in the beneficiary’s best interest to be returned to the country of nationality or last habitual residence of the beneficiary or his or her parent or parents.

(e) Decision. The petitioner will be notified of the director’s decision, and, if the petition

is denied, of the reasons for the denial. If the petition is denied, the petitioner will also be notified of the petitioner’s right to appeal the decision to the Associate Commissioner, Examinations, in accordance with part 103 of this chapter.

[58 FR 42850, Aug. 12, 1993, as amended at 74 FR 26937, June 5, 2009] A copy of this regulation is also available online at http://www.gpo.gov/fdsys/pkg/CFR-‐2012-‐title8-‐vol1/pdf/CFR-‐2012-‐title8-‐vol1-‐sec204-‐11.pdf.

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APPENDIX F: USCIS Information and Authoritative Releases on SIJS NEUFELD POLICY MEMORANDUM Written by Donald Neufeld, then Acting Associate Director for USCIS, the Neufeld Policy Memorandum’s purpose was to provide field guidance to USCIS officers after the passage of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008. The memorandum clarified updates that affected eligibility for SIJS, age requirements, consent to jurisdiction, expeditious adjudication of petitions, and several new federal inadmissibility grounds from which Congress exempted SIJS petitioners. The Neufeld Policy Memorandum is available online at: http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/2009/TVPRA_SIJ.pdf. USCIS MEMORANDUM #3 Written by William R. Yates, then Associate Director for Operations for USCIS, Memorandum #3 provides policy and procedural clarifications on the adjudication of SIJS petitions. As a 2004 circulation, it predates the TVPRA amendments of 2008, but it still provides a valuable overview and guidance regarding the effect SIJS approval, the full universe of documentation required for SIJS petitions, and the role of a state court order in the process. USCIS Memorandum #3 is available online at: http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-‐2008/2004/sij_memo_052704.pdf. USCIS IMMIGRANT RELIEF FOR ABUSED CHILDREN BROCHURE The USCIS Immigrant Relief for Abused Children Brochure highlights SIJS and provides an overview of the program. Of particular importance, the brochure reflects official USCIS guidance on the issue of one-‐parent SIJS cases. The brochure makes clear that SIJS-‐eligible children may be living with a non-‐abusive parent and, therefore, that reunification not be viable with “one or both” parents means at least one parent. The USCIS brochure is available online at: http://www.uscis.gov/sites/default/files/USCIS/Green%20Card/Green%20Card%20Through%20a%20Job/Immigration_Relief_for_Abused_Children-‐FINAL.pdf.

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USCIS INFORMATION FOR JUVENILE COURTS ON SIJS The Information Sheet for Juvenile Courts is a short, two-‐page overview of SIJS and its interaction with state courts. USCIS provides “Helpful Tips for Juvenile Courts” including: (1) be familiar with current immigration law; (2) ensure HHS consent has been obtained if necessary; (3) be timely; (4) ensure the court order makes all required findings; and (5) provide a detailed court order. The Information Sheet for Juvenile Courts is available online at: http://www.uscis.gov/sites/default/files/USCIS/Green%20Card/Green%20Card%20Through%20a%20Job/Information_for_Juvenile_Courts_-‐FINAL.pdf. PEREZ-‐OLANO SETTLEMENT

The Perez-‐Olano Settlement Agreement applies to all juveniles who are not U.S. citizens and who applied on May 13, 2005, or after that date, or who wish to apply for SIJS. It permits certain youth who applied for SIJS on or after May 13, 2005, and whose petitions were denied or revoked to file a motion to reopen the denied SIJS petition or SIJS-‐based application for adjustment of immigration status. This opportunity primarily benefits youth who were subject to a valid state court order, petitioned USCIS before their twenty-‐first birthday, but whose petitions were not reviewed until after their twenty-‐first birthday. In short, Perez-‐Olano protects petitioners from aging out of eligibility.

The Perez-‐Olano Settlement is available online at: http://www.uscis.gov/sites/default/files/USCIS/Laws/Legal Settlement Notices and Agreements/Perez-‐Olano v Holder/Signed_Settlement_Agreement.pdf. PEREZ-‐OLANO POLICY MEMORANDUM The Perez-‐Olano Policy Memorandum outlines USCIS policy in response to the Perez-‐Olano Settlement Agreement, which permits certain youth who applied for SIJS on or after May 13, 2005, and whose petitions were denied or revoked to file a motion to reopen the denied SIJS petition or SIJS-‐based application for adjustment of immigration status. In short, Perez-‐Olano protects petitioners from aging out of eligibility. The Policy Memorandum highlights the four-‐part test by which USCIS officers will determine whether to grant a petitioner’s motion to reopen. The Perez-‐Olano Policy Memorandum is available online at: http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2011/April/perez-‐olano-‐settlement.pdf.

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APPENDIX G: Glossary of Immigration Terms This glossary was obtained from the National Immigrant Justice Center. Adjustment of status: A process by which a non-‐citizen in the United States becomes a lawful permanent resident without having to leave the U.S. Alien: A person who is not a citizen or national of the United States. Internal Department of Homeland Security memoranda now discourage using the term “alien” to refer to undocumented children. Alien Unlawfully Present: Ground of inadmissibility for three years for an individual unlawfully present in the U.S. for more than 180 days but less than one year commencing April 1, 1997, or for ten years if unlawfully present for one year or more. Child: For federal SIJS purposes, the term “child” means an unmarried person under twenty-‐one years of age. Deportable: Being subject to ejection from the U.S. for violating an immigration law, such as entering without inspection, overstaying a temporary visa, or being convicted of certain crimes. Deportation: The ejection of a non-‐citizen from the United States. Prior to the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”), non-‐citizens were ejected from the United States through deportation proceedings. IIRIRA combined what were formerly known as deportation proceedings and exclusions proceedings into once single removal procedure. Entry Without Inspection: Entering the United States without being inspected by the Department of Homeland Security, such as a person who runs across the border between the U.S. and Mexico or Canada. This is a violation of the immigration laws. Immigrant Visa: A document required by the INA and required and properly issued by a consular office outside of the United States to an eligible immigrant under the provisions of the INA. An immigrant visa has six months validity. Immigration and Nationality Act (“INA”): The immigration law that Congress originally enacted in 1952 and has modified repeatedly. Immigration Judge: Presides over removal proceedings. Employed by Executive Office of Immigration Review (“EOIR”), not USCIS. Naturalization: The process by which a lawful permanent resident (“LPR”) becomes a United States citizen.

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Non-‐citizen: Any person who is not a citizen of the U.S., whether legal or undocumented. Referred to in the INA as an “alien.” Nonimmigrant: A person who plans to be in the U.S. only temporarily, such as a person with a tourist or student visa. A nonimmigrant will ordinarily have a visa stamp in his/her passport and a card that states how long the person can stay in the U.S. Overstay: To fail to leave the U.S. by the time permitted by the Department of Homeland Security on the nonimmigrant visa (as ordinarily indicated on the I-‐94 card) or to fail to arrange other legal status by that time. Relief: Term used for a variety of grounds to avoid deportation or exclusion. Removal: Proceedings to enforce the departure of persons seeking admission to the United States who are inadmissible or persons who have been admitted but are removable. Undocumented: A non-‐citizen whose presence in the U.S. is not known to the Department of Homeland Security (“DHS”) and who is residing here without legal immigration status. Undocumented persons include those who originally entered the U.S. legally for a temporary stay and overstayed or worked without DHS’s permission and those who entered without inspection. Often referred to as “illegal aliens.” Visa: A document (or a stamp placed in a person's passport) issued by a United States consulate abroad to a non-‐citizen to allow that person to enter the U.S. Visas are either nonimmigrant or immigrant visas. Visa Petition: A form (or series of forms) filed with the Department of Homeland Security (“DHS”) by a petitioner so that the DHS will determine a non-‐citizen’s eligibility to immigrate.

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APPENDIX H: A Primer on Immigration Law

Ø What are the different types of immigration “status” that an individual in the United States can have?67

United States Citizens

Citizens acquire their status through three primary avenues: (1) being born in the United States or U.S. territories; (2) being born abroad to U.S. citizen’s mothers or fathers, or (3) naturalizing after being a lawful permanent resident.

The third avenue—naturalization—requires that an individual: (1) be at least 18

years old; (2) be a lawful permanent resident (explained below); (3) have resided continuously in the United States for five years (or three years if married to a U.S. citizen) after becoming an lawful permanent resident; (4) be present in the United States at least half of the time period in the third requirement; (5) be of good moral character; and (5) support the U.S. Constitution.

Citizens cannot be deported (“removed”) from the United States, except in limited

circumstances involving the acquisition of citizenship through fraud. Citizens may also petition for family members to become lawful permanent residents. Lawful Permanent Residents

Lawful permanent residents (“LPRs”) may live and work permanently in the United States. Commonly known as “green card holders,” LPRs must declare an intention to live permanently in the United States. An immigrant may petition for LPR status through a variety of avenues, including entering on a permanent visa, adjusting status from being a temporary visa holder, and adjusting status from being a refugee, asylee, VAWA petitioner, or special immigrant. To be eligible for LPR status, an immigrant must avoid federal bars to admissibility, which are set forth in the federal immigration law. Likewise, federal immigration law proscribes immigrants from engaging in various illegal activities, the consequence of which would subject an LPR to removal. Temporary Visa Holders

Some visa holders enter the United States with the express intention of staying temporarily. The government grants these individuals the right to enter the United States for specific purposes—e.g., business or pleasure (“B” visas), scholarship or education (“J” or “F” visas), professional employment (“H” visas), and being the fiancée of an American citizen (“K” visas).

67 This section was adapted from State Justice Inst., Overview of Types of Immigration Status, Immigration and the State Courts Initiative (2013), available at http://www.sji.gov/PDF/Immigration%20Status%204-‐1-‐13.pdf.

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These temporary visas sometimes authorize derivative beneficiaries to accompany the principal visa holder. The status of the derivative beneficiary depends on the principal visa holder. If the principal visa holder violates the provisions of her visa or the visa expires, then the derivative beneficiary loses his lawful status as well. Undocumented Individuals

Undocumented individuals have no lawful immigration status. These individuals

either had a valid visa that expired or entered the United States surreptitiously and never had a lawful immigration status. Unlike most individuals with some lawful immigration status, undocumented individuals cannot legally work or remain in the United States.

Ø Who handles immigration administration and enforcement in the United States?

The Department of Homeland Security (“DHS”) oversees immigration in the United

States. Within the DHS, there are three agencies tasked with the administration and enforcement of immigration law:

§ U.S. Citizenship and Immigration Services (“USCIS”) § U.S. Customs and Border Protection (“CBP”) § U.S. Immigration and Customs Enforcement (“ICE”)

U.S. Citizenship and Immigration Services (“USCIS”)

USCIS deals primarily with “granting immigration and citizenship benefits.”68 The agency is responsible for administering the naturalization process for individuals to become U.S. citizens as well as the steps by which family members of LPRs and citizens can come to the United States.69 USCIS is responsible for granting SIJS petitions. Their website is found at http://www.uscis.gov. U.S. Customs and Border Protection (“CBP”)

CBP is a law enforcement agency that is responsible for enforcing U.S. laws and regulations surrounding the United States border.70 The agency is responsible for numerous aspects of border control, including customs, immigration, security, and agricultural protection.71 For the context of this guide, the most relevant fact about CBP is

68 About Us, U.S. Citizenship & Immigr. Services, http://www.uscis.gov/aboutus (last visited Mar. 1, 2015). 69 What We Do, U.S. Citizenship & Immigr. Services, http://www.uscis.gov/about-‐us/what-‐we-‐do (last visited Mar. 1, 2015). 70 About CBP, U.S. Customs & Border Protection, http://www.cbp.gov/about (last visited Mar. 1, 2015). 71 Id.

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that it is the agency most likely to apprehend and process unaccompanied children arriving at the U.S. border. U.S. Immigration and Customs Enforcement (“ICE”)

ICE is the federal agency responsible for enforcing the federal criminal and civil laws regarding border control, customs, trade, and immigration.72 Immigration enforcement is the agency’s largest responsibility, with agents and attorneys investigating and prosecuting those who violate federal immigration laws.73 Because of limited resources, ICE has prioritized removal efforts on undocumented immigrants who are criminals and those whom CBP apprehends at the U.S. border.74

Ø What are other pathways to Lawful Permanent Residence for minors?

SIJS is not the only pathway to LPR status, nor is it always the best pathway to residency for immigrant youth. The following are examples of other pathways to LPR status. T Visa

The T visa is available to victims of human trafficking in the United States. To be eligible, the victim must meet certain requirements, including: (1) that the trafficking was severe, and (2) that she is cooperating and assisting officials in the prosecution of the traffickers.75 U Visa

The U visa is available to undocumented individuals who are victims and witnesses of crimes in the United States. To be eligible, the individual must: (1) have been subjected to severe physical or mental harm as a result of criminal activity; (2) be, or be likely to be, of assistance to law enforcement officials in investigating or prosecuting the criminal activity; and (3) receive certification from an official of the second requirement.76 The U visa is temporary; however, it provides an avenue to lawful permanent residence. Asylum

Refugees and asylees are permitted to stay in the United States so long as returning to their home country would put their safety risk. Requirements for asylee status include that the individual:

72 What We Do, U.S. Immigr. & Customs Enforcement, http://www.ice.gov/overview (last visited Mar. 1, 2015). 73 Id. 74 Id. 75 State Justice Inst., supra note 67. 76 Id.

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1. Has a well-‐founded fear of persecution on the basis of race, religion, nationality, membership in a particular group, or political opinion if returned to the home country or country of last permanent residence;

2. Is not a domestic security risk or a perpetrator of persecution; and 3. Has not committed certain crimes.77

Adoption

A youth becomes the “child” of adoptive parents after two years in the parent’s lawful custody and when a legal adoption is effected prior to the child’s 16th birthday.78 For children adopted by lawful permanent residents and U.S. citizens, the parents can immediately petition to have the undocumented adopted child adjust to lawful status. Even if the parent is not yet a lawful permanent resident, the child will be able to benefit from any future permanent status of the parent so long as the adoption takes place prior to the child’s 16th birthday.

77 Id. 78 8 U.S.C. 1101(b)(1)(E)(i) (2013).

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APPENDIX I: Acknowledgements

The authors benefited from the expertise and guidance of numerous individuals and groups while researching and producing this guide. First, the authors met with Summer Allchin from the Iowa–Nebraska Chapter of the American Immigration Lawyers Association to establish a vision for the project and identify opportunities for educating individuals about SIJS. Ms. Allchin came up with the idea to complement the guide with an online clearinghouse that would provide judges and attorneys with a resource for evaluating potential SIJS petitions. She also provided support throughout the project, which was much appreciated.

The authors then sought the input of numerous professionals across Iowa with experience in probate court and the filing of SIJS petitions. This guide was shaped by the input of those professionals—Amanda Bahena, Lori Chesser, Tre Critelli, Professor Jerry Foxhoven, Professor Josephine Gittler, Brynne Howard, Jennifer Juhler, Mark Konrad, Sonia Parras Konrad, Professor Jean Lawrence, Chelsea Moore, Ann Naffier, Ellen Ramsey-‐Kacena, Jana Weiler and many other attorneys who provided guidance and support through the AILA email listserv. Professors Stella Burch Elias and Bram Elias also provided invaluable, in-‐person guidance and resources. Last, but not least, the authors owe a debt of gratitude to the other members of the Advanced Immigration Law & Policy Seminar at the University of Iowa College of Law for their feedback and thoughtful advice throughout the term of the project.

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