The Use and Limitations of Special Immigrant Juvenile Status

CHILDREN ON THE BORDER:

The Use and Limitations of Special Immigrant Juvenile Status

Prepared by CHILDREN AT RISK with the generous support of the Texas Bar Foundation

RESEARCH & PRODUCTION TEAM Robert Sanborn, Ed.D. President & CEO Mandi Sheridan Kimball, M.S.W. Director of Public Policy & Government Affairs James Caruthers, J.D. Senior Staff Attorney Kavita C. Desai, J.D. Staff Attorney Todd J. Latiolais, J.D. Staff Attorney Christopher Agboli Summer Institute Law Fellow Marshall French Summer Institute Law Fellow Brittany Greger Summer Institute Law Fellow Leah Moore Summer Institute Law Fellow Ashley Teague Public Policy & Law Center Intern David Varghese Public Policy & Law Center Intern

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ABOUT CHILDREN AT RISK

CHILDREN AT RISK is a non-partisan research and advocacy organization dedicated to improving the quality of life for Texas’ children through strategic research, public policy analysis, innovation, legal action, community education, and collaboration. The organization began in 1989 when a group of child advocates met to discuss the lack of data on the status of children and the absence of strong public policy support for Houston’s children. Through its biennial publication, Growing Up in Houston: Assessing the Quality of Life of Our Children, CHILDREN AT RISK tracks over 140 indicators measuring the quality of life of kids in our community. CHILDREN AT RISK has evolved from an organization researching the multitude of obstacles our children face into one that also drives macro-level change the better the future for Texas’ children. Through its Public Policy & Law Center, CHILDREN AT RISK uses policy and legal expertise as a powerful tool to drive change for kids. In recent years, CHILDREN AT RISK has grown exponentially in its capacity to speak out and drive change for children and has become the premier resource on children’s issues among major media outlets, public officials, and the non-profit sector.

ABOUT THE TEXAS BAR FOUNDATION The Texas Bar Foundation solicits charitable contributions and provides funding to enhance the rule of law and the system of justice in Texas, especially for programs that relate to the administration of justice; ethics in the legal profession; legal assistance for the needy; the encouragement of legal research, publications and forums; and the education of the public. The Texas Bar Foundation is the largest charitably funded bar foundation in the nation. Membership is composed of the most elite Texas attorneys. The Foundation’s members are nominated because of their dedication to the administration of justice and high professional standing among his or her peers. For more than four decades, the Texas Bar Foundation has helped organizations to: educate the public about their rights and responsibilities under the law; provide legal services to the poor; and assist those who turn to the legal system for protection. Grants are made possible by the generosity of Fellows and charitable gifts from individuals and law firms across the state. The Texas Bar Foundation and its members are committed to the mission of Advancing Justice in Texas by providing opportunities to support the rule of law in Texas.

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TABLE OF CONTENTS I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 a. Other Forms of Relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2 II. Methodology. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 III. History of Special Immigrant Juvenile Status. . . . . . . . . . . . . . . . . . . . . . . . . .3 a. Family Law Origins of Special Immigrant Juvenile Status . . . . . . . . . . . . .3 b. Immigration Law Origins of Special Immigrant Juvenile Status . . . . . . . . . 4 c. Revisions to SIJS 1990 – 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4 d. The William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5 i. Legal Orientation Program. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7 ii. Division of Unaccompanied Children’s Services Legal Access Project. . 7 IV. Obtaining Special Immigrant Juvenile Status and Obtaining Lawful Permanent Residency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 a. Overview of Child Movement Through the State Court and Immigration Court System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 1. Alonzo: Child who is in Deportation Proceedings and in ORR Custody . . 9 2. Beatriz: Child who is in Deportation Proceedings but is No Longer in ORR Custody . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 3. Carlos: Child who is Not in Deportation Proceedings and who is Not in ORR Custody . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 4. Dara: Child who is Not in Deportation Proceedings and who is in DFPS Custody . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14 V. Findings for SIJS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 a. State Court Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 b. Factual Findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16 c. Causes of Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17 d. Guardian Ad Litems . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18 e. Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 f. Immigration Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 VI. The Recent Influx of Unaccompanied Migrant Children . . . . . . . . . . . . . . . .20 a. Additional Facilities for UMC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 CHILDREN AT RISK CHILDREN ON THE BORDER



b. Federal and Texas Responses to UMC Crisis . . . . . . . . . . . . . . . . . . . . . . 22 c. Immigration Judges and the TVPRA . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 d. Change in SIJS Courts in Harris County . . . . . . . . . . . . . . . . . . . . . . . . . .23

VII. Policy Recommendations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 a. State Level . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 1. Raise the Age of Dependency from Eighteen to Twenty-One . . . . . . . . 24 i. Other State Approaches to Extending Jurisdiction . . . . . . . . . . . . . . . 25 ii. CHILDREN AT RISK Proposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 2. Add SIJS Findings to the Texas Government Code . . . . . . . . . . . . . . . . 25 3. Add Paternity Presumption for Out of State Birth Certificates and Unmarried Fathers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 4. Increase the Number of Pro Bono Attorneys Available to Represent Children in SIJS Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 5. Increase Transparency of SIJS Among State Agencies . . . . . . . . . . . . . 28 b. Federal Level . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28 1. More Research and Greater Transparency is Needed . . . . . . . . . . . . . . 28 i. Greater Transparency Needed Concerning Voluntary Departure. . . . .30 ii. Federal Investigation Reveals Improper Recordkeeping Practices. . . .30 2. Change Agency Responsible for Screening Children’s Eligibility for Voluntary Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 c. Training and Education. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 1. Require Training for Both School Counselors and Teachers about the Immigration Concerns Facing Students . . . . . . . . . . . . . . . . .32 i. Training School Counselors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 ii. Training for School Teachers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 2. Training for Customs and Border Protection (CBP) . . . . . . . . . . . . . . . . . .33 3. Educate the Public . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .33 VIII. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34 Index for Commonly Used Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35

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FOREWORD BY DR. ROBERT SANBORN, ED.D. President & CEO, CHILDREN AT RISK We live in a nation which often feels divided. Important issues become polarized and reason gives way to rhetoric as we split ourselves among ideological, political, and other lines. However, we are also a nation which has proven its ability to stand united against injustice or in response to crisis situations. Unfortunately, the summer of 2014 delivered a crisis which highlighted a division in our country: our Southwest Border experienced an incredible surge of unaccompanied migrant children. Last year, over 68,000 children were apprehended at the border, and as often happens with issues touching on immigration, we found ourselves divided over the proper response. The true issue that presented itself during this surge was not primarily one of immigration or border security but rather an issue of child safety. The influx of children came primarily from Central American countries with extreme levels of violence, and children reported leaving because of issues such as gang activity and abuse. It is no coincidence that the three countries with the highest number of unaccompanied migrant children – Guatemala, El Salvador, and Honduras – also have three of the world’s top five homicide rates. Children are fleeing these countries and seeking refuge not only in the United States but in other countries as well. Obviously, the United States cannot become the final destination for every child who is in a dangerous or unhealthy situation; however, our existing legislative framework provides relief for individuals from other countries in certain circumstances and reflects our nation’s commitment to protecting the vulnerable. Prior to the surge at the border, CHILDREN AT RISK received funding from the Texas Bar Foundation to study the role of Special Immigrant Juvenile Status (SIJS) and educate attorneys in Texas. While SIJS is only a subset of the broader conversation around unaccompanied minors, the “summer surge” emphasizes the importance of understanding the availability of this legal protection. As our research team of legal fellows from CHILDREN AT RISK looked at SIJS, we found a lack of awareness and a sense of confusion around the legal protections available for unaccompanied migrant children. We found great advocates working across Texas to protect kids, but we also found policies and practices which make it difficult for these children to obtain the protections available to them under the law. We hope this publication will be a valuable resource for attorneys, the judiciary, policymakers, and the community to learn more about Special Immigrant Juvenile Status. We look forward to continuing our work with these stakeholders in order to improve the response to children in need. We know that Texans have great compassion for children, and we hope this publication serves as call to action and a reminder that our commitment to protecting children at risk knows no borders. Hug your kids,

Dr. Robert Sanborn, Ed.D. President & CEO CHILDREN AT RISK CHILDREN AT RISK CHILDREN ON THE BORDER

I. Introduction In 2014, 68,541 unaccompanied migrant children entered the United States and were apprehended at the Southwest Border.1 This represents a 77% increase from 2013 and a 330% increase from 2011.2 While many people debate the factors that have caused so many children to leave their homes and travel alone to the United States, the children themselves have consistently cited certain push and pull factors: extreme violence, poverty, and the desire to be united with family members.3 The recent surge in unaccompanied minor children entering the country has raised a number of policy issues ranging from providing for immediate needs, such as safe temporary care and education, as well as long-term issues, such as the capacity of our legal system to screen and process cases. While the ultimate solution will be complex and multifaceted, Special Immigrant Juvenile Status (SIJS) offers protection for children who have been abused, neglected, or abandoned by one or both parents by providing a pathway to lawful permanent residency.4

UNACCOMPANIED MIGRANT CHILDREN: APPREHENSIONS AT THE SOUTHWEST BORDER 5 80,000 70,000 60,000 50,000 40,000 30,000 20,000 10,000 0

68,541

38,759 15,949 FY2011

24,403

FY2012

FY2013

FY2014

With the surge in migrant children entering the United States, understanding how SIJS intersects with immigration policy is important. While SIJS provides immigration relief, it is also important to recognize that SIJS is not primarily an immigration issue. SIJS was introduced into law over twenty years ago in order to protect undocumented children who were suffering from abuse, neglect, or abandonment.6 In fact, the statute states that SIJS will not be granted if the petition is sought primarily for the purpose of obtaining a green card,7 as opposed to obtaining relief from abuse, neglect, or abandonment.8 SIJS ensures that the state can protect the welfare of all children, not just those with citizenship.9 This publication will focus on identifying the barriers children encounter when applying for this relief and making policy recommendations to ensure that all children who qualify can be removed from abusive situations and receive the full protection available to them under the law. This publication analyzes the current law surrounding Special Immigrant Juvenile Status and makes recommendations on how the law may be changed and 1

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applied more efficiently. This publication calls on the United States Congress, the Texas Legislature, and the community to take action to ensure that every child receives the protections to which he or she is entitled. Part II outlines the methodology used to produce this publication and the research relied upon in order to make the recommendations contained within.10 Part III details the history of SIJS and Congress’ intentions when enacting the first SIJS statute and the subsequent amendments to the statute.11 Part IV explains the flow of children through the SIJS process and identifies the most common barriers children encounter.12 Part V describes the state and immigration court processes and the issues involved in applying for SIJS.13 Part VI discusses the current crisis the United States is facing involving unaccompanied migrant children (UMC) and how this crisis relates to SIJS.14 Part VII makes recommendations to Congress, the Texas Legislature, and the community for how SIJS can be applied more efficiently and fairly.15

a. Other Forms of Relief Special Immigrant Juvenile Status is not the only form of immigration relief potentially available to children. Other forms of relief include: • T-Visa - This visa is available to people who entered the country as victims of some extreme form of human trafficking.16 • U-Visa - This visa is available to individuals who have suffered substantial physical or mental abuse as a result of having been a victim of a qualifying criminal activity.17 • Violence Against Women Act (VAWA) - Individuals who have suffered domestic abuse (either from a parent or a spouse) may be eligible for immigration relief under the Violence Against Women Act (VAWA).18 However, immigration relief through VAWA is restricted to spouses19 or children who are physically battered or subjected to extreme cruelty by a U.S. citizen or lawful permanent resident while in the United States.20 • Asylum – Asylum can provide immigration relief and potentially serve as a path to lawful permanent residency.21 To be eligible to claim asylum in the United States, an individual must have fled a country with a well-founded fear of persecution on account of their race, religion, nationality, membership in a particular social group, or political opinion.22

II. Methodology This publication was funded by the Texas Bar Foundation. The Foundation allocated funds to CHILDREN AT RISK to conduct research and make policy recommendations on Special Immigrant Juvenile Status. To produce this

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publication, CHILDREN AT RISK has conducted numerous interviews with nonprofit organizations in the field including Kids in Need of Defense (KIND), the American Bar Association’s South Texas Pro Bono Asylum Representation Project (ProBAR), the Bernardo Kohler Center, and Catholic Charities. CHILDREN AT RISK also interviewed members of the University of Houston Immigration and Family Law Clinics, South Texas Legal Clinic, and multiple pro bono attorneys who have represented SIJS eligible clients. The information from these interviews helped form policy recommendations on the subject. Research was also gathered by reading reports from several government agencies and government contracted groups such as: the Office of Refugee and Resettlement (ORR), the Department of Family and Protective Services (DFPS), the Department of Homeland Security (DHS), the Department of Health and Human Services (HHS), and the VERA Institute of Justice. The research gathered was used to describe the different avenues a child may take to receive SIJS relief. CHILDREN AT RISK distributed a survey to fourteen of the most populated counties in Texas, because these counties have multiple courts that can hear SIJS cases under Texas law, in order to gauge Texas judges’ knowledge regarding SIJS. Unfortunately, the response rate for this survey was too low to draw meaningful conclusions and the survey results will therefore not appear in this publication. Based on the information gathered from research and interviews, CHILDREN AT RISK has created this publication to raise awareness about SIJS and offer policy recommendations to improve the process by which children may obtain SIJS.

III. History of Special Immigrant Juvenile Status The history of Special Immigrant Juvenile Status is inextricably tied to that of federal immigration law and state family law, and its creation in 1990 served as a long overdue reconciliation of the two.23 The discussion below traces the origins of SIJS in family law and in federal immigration law and examines how SIJS protections have been revised and changed over the years.

a. Family Law Origins of Special Immigrant Juvenile Status In a sense, SIJS can trace its family law origins all the way back to 1944.24 In 1944, for the first time, the Supreme Court signaled that the state has broad authority to regulate a child’s welfare when it upheld a Massachusetts child labor law.25 Following this decision, more and more states began developing programs designed to utilize state power, authority, and resources to rescue children from abuse at the hands of their parents or caregivers.26 The federal government, recognizing the importance of this cause, has since passed laws supporting the states in this pursuit,27 including laws that establish incentives for states to find 3

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foster care for children the state has removed from parental custody.28 However, while states had the federal government’s blessing to find homes for children removed from abusive parents, state power was ultimately limited by the very federal system in which it operated.29 Namely, although states had the ability to rescue children with no immigration status from abusive parents and facilitate their placement in foster homes, the children would still become “illegal immigrants” upon turning eighteen and would not have the right to work and live freely in the United States.30 Thus, state family law ran headfirst into federal immigration law and children without legal immigration status found themselves left by the wayside.31

b. Immigration Law Origins of Special Immigrant Juvenile Status The federal immigration law origins of SIJS lie in the Immigration and Nationality Act (INA) of 1952.32 In 1952, Congress passed the INA in response to the growing immigrant population in the United States and the pressing need to organize all immigration law into one body of text.33 However, the INA did not adequately protect the interests of abused, neglected, and abandoned children who did not have legal immigration status.34 In the 1980s, concerns arose over the treatment of unaccompanied migrant children (UMC), eventually leading to the Flores Agreement and the implementation of measures designed to ensure that “immigration officials detaining minors provide (1) food and drinking water; (2) medical assistance in emergencies; (3) toilets and sinks; (4) adequate temperature control and ventilation; (5) adequate supervision to protect minors from others; and (6) separation from unrelated adults whenever possible.”35 Approximately forty years after the passage of the INA, Congress enacted various amendments to the INA.36 Notably, revisions in 1990 created a new pathway to legal permanent residency Special Immigrant Juvenile Status.37

c. Revisions to SIJS 1990-2008 Although the SIJS provisions enacted in 1990 addressed a critical issue, they also unintentionally created some problems and ambiguities.38 Congress intended SIJS to protect immigrant children who have suffered from “family abuse, neglect, or abandonment,”39 but the section of the 1990 INA that established SIJS did not specifically indicate this.40 As a result, a number of individuals for whom SIJS was not intended to provide immigration relief41 were able to gain lawful permanent residence status even though they were not fleeing abuse, neglect, or abandonment.42 To remedy this problem, Congress again amended the INA in 1997 to reflect its intention that SIJS be used only in cases where the child is in need of long-term foster care because of abuse, neglect, or abandonment.43 The 1997 amendment also cleared up some confusion surrounding the relative powers of the state family courts and the Immigration and Naturalization Service (INS) in making determinations about the placement and custody of a juvenile in CHILDREN AT RISK CHILDREN ON THE BORDER

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certain circumstances.44 In the past, INS had sole authority to verify the specific facts pertinent to an applicant’s request for immigration relief.45 However, because SIJS required findings of fact from a state juvenile court, some confusion existed as to what role INS should play in evaluating whether a child was eligible for relief.46 The 1997 amendment clarified that state courts would not have jurisdiction to make decisions about a juvenile in INS custody without specific consent from the Attorney General.47 Unfortunately, even after the 1997 amendment, uncertainty remained within INS as to its role in determining SIJS eligibility for children.48 The uncertainty centered around whether INS had a responsibility to make its own independent factual determinations about the child’s case49 and whether a state court had jurisdiction to make factual findings regarding a child in INS custody.50 The confusion remained even after the responsibility for the processing and treatment of unaccompanied minor children was transferred from INS to U.S. Citizenship and Immigration Services (USCIS) and the Department of Health and Human Services (HHS).51 The uncertainty was finally resolved in 2004 by an interoffice memorandum advising USCIS adjudicators viewing the SIJS applications to “not second-guess the court rulings or question whether the court’s order was properly issued.”52 This was a victory for children’s advocates, because the policy removed one additional obstacle that had to be overcome before an SIJS case could reach a successful conclusion.53 As a result of this policy, a child who has successfully obtained a predicate order from a state court should generally not have to worry about needing to plead their case a second time in order to pass the independent review of a USCIS adjudicator.54

d. The William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 The most significant change to the SIJS procedure came in 2008 with the passage of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA).55 The amendment was motivated, in part, by concerns that children apprehended by U.S. Customs and Border Patrol (Border Patrol) were not being adequately screened for immigration relief.56 As a result, Congress not only increased protections for UMC, but also clarified some long-standing confusion that remained as to the meaning of certain phrases in the SIJS statute.57 The amendment mandated certain procedures and policies to increase the comfort and safety of children in the custody of HHS.58 Furthermore, it required that SIJS petitions made to USCIS be adjudicated in a timely manner.59 The TVPRA effectively changed the definition60 of “special immigrant juvenile” to eliminate the “eligible for long-term foster care” language in the old statute and allowed SIJS eligibility for children where reunification with one or both parents was not viable.61 The old requirement that the child be “eligible for long-term foster care” had been “a source of confusion for both juvenile courts and USCIS.”62 Some attorneys and judges who handled SIJS cases interpreted this 5

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requirement to include children for whom guardianship had been established and not just children whom the court had placed into foster care.63 The significance of this difference is that the interpretation allows children who have been adopted to be eligible for SIJS, even if they were never formally removed from a parent by the state or placed into foster care.64 Before the TVPRA, the law allowed applicants to use guardianship proceedings to obtain the necessary state court findings, although it was not explicit in the statutory language.65 The TVPRA confirmed the interpretation allowing for adopted children to be eligible for SIJS,66 and USCIS has formally changed its policies to accommodate the new TVPRA language.67 Additionally, the TVPRA allows the state court to consider SIJS relief when reunification is “not viable due to abuse, neglect, abandonment, or a similar basis found under State law.”68 The TVPRA’s addition of the phrase “or a similar basis found under State law” to the statutory language is important not only because it empowers states to potentially broaden the scope of SIJS protection, but also because it sends a signal to delinquency courts that they have the ability to make SIJS findings.69 Prior to the passage of the TVPRA, some delinquency courts hesitated to make SIJS findings because the former statutory language “required courts to make findings exclusively regarding abuse, neglect, or abandonment.”70 Some delinquency courts interpreted this language to mean that SIJS findings were solely within the jurisdiction of dependency courts.71 However, the TVPRA’s addition of the phrase “or a similar basis found under State law” gives delinquency courts more leeway to enter SIJS findings.72 Perhaps the most important change to the SIJS process made by the TVPRA was that it provided protection to individuals who were in danger of “aging-out” of SIJS protection.73 The plain language of the SIJS statute states that any individual who meets the other requirements of SIJS can be eligible for SIJS, provided that they are under the age of twenty-one.74 Prior to the TVPRA’s passage, this was interpreted to require that the entire immigration process be completed prior to the applicant turning twenty-one in order for SIJS to be awarded.75 Effectively, this meant that individuals who submitted their SIJS petition to USCIS before turning twenty-one could find themselves ineligible for SIJS relief if they turned twenty-one before their immigration process could be completed.76 The TVPRA changed this so that as long as a child is under twenty-one at the time his SIJS petition is filed with USCIS, he remains eligible for SIJS relief even if he turns twenty-one.77 However, this crucial relief is not provided to children in many states, including Texas, due to complications involving the jurisdiction of state family courts. Finally, the TVPRA created a program aimed at helping unaccompanied minor children navigate their immigration proceedings, the Legal Orientation Program (LOP), and the Division of Unaccompanied Children’s Services Access to Legal and Child Advocated Service Project (DUCS Legal Access Project). While useful, these programs have unfortunately generally not been proven to increase positive legal outcomes for the children who receive them.78 CHILDREN AT RISK CHILDREN ON THE BORDER

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i. Legal Orientation Program In 2003, Congress began providing funding to the Executive Office for Immigration Review (EOIR) to be used for the purposes of educating individuals in deportation proceedings about their legal rights and the possibility of immigration relief.79 This initiative came to be known as the Legal Orientation Program (LOP) and is now carried out by the Vera Institute of Justice (Vera), which has contracted with EOIR.80 The LOP provides education to individuals in deportation proceedings through group and individual orientations, self-help workshops, and by referring potential candidates for immigration relief to pro bono attorneys.81 However, the LOP does not actually provide attorneys to represent individuals in court.82 Furthermore, the effectiveness of Legal Orientation Presentations as they pertain to children who may be eligible for SIJS is uncertain. Despite the language of the TVPRA,83 the Legal Orientation Presentations given as part of the LOP are still directed towards adults who are themselves in deportation proceedings and are largely concerned with educating these adults about how to avoid their own deportation.84 Additionally, there is evidence that the LOP does not actually raise the chances of an individual receiving immigration relief.85 A 2008 study conducted by Vera to evaluate the effectiveness of the LOP determined that those individuals who had participated in the LOP experienced significantly shorter case times in immigration courts.86 While this outcome may seem encouraging, the reality is that shorter case times may not actually be in a child’s best interests.87 The Vera study cautions that “attorneys are concerned that when cases move too quickly through the immigration courts, detainees may have fewer opportunities to pursue relief”88 and that “fast cases might be associated with lower grant rates.”89

ii. Division of Unaccompanied Children’s Services Legal Access Project Vera has also contracted with HHS to conduct a program known as the Department of Unaccompanied Children’s Services Access to Legal and Child Advocated Service Project (DUCS Legal Access Project).90 The DUCS Legal Access Project is, in some respects, a child-based version of the LOP.91 This is most apparent in the “Know Your Rights” (KYR) orientations sponsored by the DUCS Legal Access Project.92 KYR presentations are given by attorneys and paralegals93 to children in ORR custody,94 and aim to “inform children about immigration court proceedings and their rights throughout the detention removal process.”95 In this respect, the KYR orientations are similar to the Legal Orientation Presentations given to adults through the LOP. Indeed, KYR orientations are susceptible to many of the same pitfalls that hamper the effectiveness of adult Legal Orientation Presentations.96 Pro bono attorneys who represent children in SIJS cases have expressed doubts as to the effectiveness of KYR presentations in contributing to the successful attainment of immigration relief, citing the inability of these orientations to adequately lead children through the complexities of the immigration system.97 Additionally, the 7

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fact that KYR presentations do not offer individualized advice and representation to children98 has been criticized by children’s watchdog groups and offered as one reason that even children who have received KYR presentations are still confused and ill-informed as to their legal options.99 The DUCS Legal Access Project also works to provide individualized pro bono legal representation for some children in ORR custody.100 This program is grounded in the section of the TVPRA that states, [t]he Secretary of Health and Human Services shall ensure, to the greatest extent practicable . . . that all unaccompanied alien children who are or have been in the custody of the Secretary or the Secretary of Homeland Security . . . have counsel to represent them in legal proceedings or matters and protect them from mistreatment, exploitation, and trafficking.101 In 2010, Vera was able to match 507 released children with pro bono representation.102 The statutory law defining SIJS has evolved over the decades since its inception, and generally has become clearer and better suited to the needs of the children it is meant to protect. However, as the law stands today, children still lack the one protection most needed to make SIJS a reality for all those eligible— access to legal representation.

IV. Obtaining Special Immigrant Juvenile Status and Obtaining L awful Permanent Residency a. Overview of Child Movement through the State Court and Immigration Court System The process for obtaining SIJS varies depending on the child’s circumstances and whether the child is in the custody of the federal government, the state government, or the care of a parent or sponsor.103 However, in all cases, to obtain SIJS, the child must be declared dependent on a court or must have been placed in the custody of an agency, individual, or department of the state;104 the child must not be able to reunite with one or both parents due to abuse, neglect, abandonment, or some other similar basis under state law;105 and it must have been determined that it is not in the child’s best interest to be returned to their country of origin.106 Unlike most forms of immigration relief, which are carried out entirely at the federal level, acquiring SIJS requires the child to obtain a predicate order from a state court.107 In Texas, four courts can exert jurisdiction in accordance with the statute: county courts at law, district courts, juvenile courts, and probate courts.108 The child must petition one of these courts to make specific findings of fact regarding their age, best interests, and safety.109 Upon receipt of these factual findings, the child must then petition U.S. Citizenship and Immigration Services CHILDREN AT RISK CHILDREN ON THE BORDER

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(USCIS) to grant SIJS.110 USCIS will review the child’s petition and state court order.111 Once the child has been granted SIJS, he or she can use this status as a basis to file for lawful permanent residency112 and as a defense to deportation if in removal proceedings.113 With consideration given to the interplay between the federal and state governments, there are four categories of cases: 1) a child who is in deportation proceedings and in the custody of the Office of Refugee Resettlement (ORR); 2) a child who is in deportation proceedings but is not in ORR custody; 3) a child who is not in deportation proceedings and is in the care of the Department of Family and Protective Services (DFPS); and 4) a child who is not in deportation proceedings and is in the care of a parent or relative.114 To illustrate these variations, we have created four fictional stories that represent the different routes children may take to obtain SIJS and permanent residency. We will follow these children through the process, illuminating the differences in the immigration and state court procedures and the barriers each child may encounter.

1. Alonzo: Child who is in Deportation Proceedings and in ORR Custody A. Migration Alonzo is a fourteen year old Honduran child. Alonzo’s mother is dead, and he lives with his father. Most nights, Alonzo’s father drinks, and when he drinks, he becomes violent. Alonzo’s father has been abusing him for as long as he can remember. The beatings became so severe that Alonzo suffered broken ribs and a fractured wrist. Alonzo began to fear for his life, and at his first opportunity, he fled to his grandmother’s house. Unfortunately, Alonzo’s grandmother could not care for him or protect him from his father. Alonzo and his grandmother were desperate, and their only solution was to arrange for Alonzo to flee. Alonzo’s grandmother had some money saved and was able to pay a “coyote” who promised to help Alonzo make it across the American border. However, Alonzo was apprehended while attempting to cross the Texas border. Alonzo does not have any relatives in the United States who can come forward on his behalf.

B. Apprehension, Detention and Placement Alonzo’s path to obtaining SIJS and a green card will begin with his apprehension at the border and his detention by immigration officials. Because Alonzo is a child who was traveling alone,115 under the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), he is entitled to unique protections that will influence where and how he is detained and his access to services.116 This section will examine how Alonzo’s designation as an unaccompanied migrant child affects his detention process. Any unaccompanied migrant child who enters federal custody must be transferred to the care and custody of the Department of Health and Human Services (HHS) and must be placed in the “least restrictive setting.”117 Alonzo was caught entering the United States illegally and was apprehended on suspicion of 9

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violating immigration law.118 Initially, he will be detained by Customs and Border Patrol, a division of the Department of Homeland Security (DHS).119 By law, DHS must identify any unaccompanied migrant child in their custody and notify the Department of Health and Human Services (HHS) of their detention.120 DHS then has seventy-two hours to screen and transfer the child to the care and custody of HHS. In practice, DHS will place Alonzo in a temporary detention facility where he will not be housed with any unrelated adults and will conduct an interview to gather information about Alonzo’s immigration status and well-being before transferring him to HHS care.121 DHS will also file a Notice to Appear with the United States Department of Justice Executive Office for Immigration Review and begin removal proceedings against Alonzo.122 Finally, Alonzo will be transferred to the care and custody of HHS.123 Once in the custody of HHS, the Office of Refugee Resettlement (ORR) must ensure that Alonzo is placed in the least restrictive setting.124 ORR will coordinate with DHS to gather information regarding Alonzo’s gender, age, country of origin, medical and psychological condition, and check whether he has had any contact with the juvenile justice system.125 Based on this information, ORR will place Alonzo into one of the following four types of care: shelter care, staff secure care, secure care, or transitional foster care.126 Alonzo has had no contact with the juvenile justice system and does not pose an escape risk, so he will be placed into shelter care with a privately contracted facility.127 In addition to securing a shelter facility, under the Flores Agreement, ORR must attempt to reunify Alonzo with a sponsor in the United States.128 ORR can release a child into the custody of a parent, legal guardian, adult relative, an individual specifically designated by the parent, or any other adult seeking custody that DHS deems appropriate.129 Because Alonzo does not have any relatives in the United States who are willing to step forward and sponsor him and because it appears that he will qualify for some form of immigration relief, Alonzo will be placed with an agency that is contracted to provide long-term foster care.130 He will remain in long-term foster care until the completion of his immigration proceedings or a sponsor can be identified. Alonzo’s time in foster care will be the first time in his life that he will be in a safe and stable environment.131

C. Legal Process Although Alonzo is a child and does not have a parent or legal guardian to represent his best interests, he does not have a right to an attorney if he cannot afford one.132 Under law, HHS is only required to “ensure, to the greatest extent practicable . . . that all unaccompanied alien children . . . [who are not from a contiguous country], have counsel to represent them in legal proceedings.”133 This provision is fulfilled through the Legal Orientation Program and the Know Your Rights program,134 the provision of child advocates, (a public-private partnership that matches pro bono attorneys with expert mentors),135 and the recently announced justice AmeriCorps program.136 Still, more than half of the children in immigration proceedings go unrepresented.137 However, Alonzo is fortunate in this regard because long-term foster care providers obtain pro bono representation for CHILDREN AT RISK CHILDREN ON THE BORDER

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every child entering foster care.138 Alonzo’s pro bono representation will ensure that he attends all of his immigration proceedings and that he applies for any immigration relief for which he is eligible.139 Obtaining lawful permanent residency should be the ultimate goal of the SIJS process.140 Application for SIJS will serve as a defense to Alonzo’s removal and as a basis for his adjustment of status.141 SIJS has both a state and federal component, requiring his attorney to navigate both systems simultaneously.142 This creates complexities that are unique to each category of cases. Alonzo’s case requires attention to consent,143 removal status,144 and proof of abandonment.145 Alonzo’s attorney will seek to delay the immigration proceedings while she pursues SIJS.146 Once SIJS is granted, Alonzo can seek to have his detention proceedings administratively closed or terminated.147 Concurrent with the immigration proceedings, Alonzo’s attorney will petition the state court to establish dependency and make the requisite SIJS findings.148 After receiving these findings, Alonzo should petition USCIS for SIJS.149 A grant of SIJS will allow Alonzo to apply for a green card and apply for citizenship after 5 years as a permanent resident.150

2. Beatriz: Child who is in Deportation Proceedings but is No Longer in ORR Custody A. Migration Beatriz is a seventeen year old child from El Salvador. Her father abandoned their family when she was two. Her mother migrated to the United States when she was ten, and she has since been living with her grandmother. However, Beatriz’s grandmother died, and with no other available guardian in El Salvador, Beatriz migrated to the United States to reunite with her mother. Beatriz was apprehended at the border.

B. Apprehension, Detention, and Placement Beatriz’s initial processing will be similar to Alonzo’s:151 DHS will place her in a detention facility until she can be screened and transferred to ORR.152 However, since Beatriz has a mother in the United States, she will go through the reunification process in which ORR must attempt to reunify Beatriz with her mother.153 ORR will contact Beatriz’s mother and require that she complete the family reunification packet before taking custody of Beatriz.154 Sponsors are obligated to care for the physical, mental, and financial well-being of any child in their care.155 They must also ensure that the child attends all of his or her immigration hearings.156 Therefore, the packet requests information regarding the potential sponsor’s relationship to the child, age, gender, employment, and immigration status.157 A staff member will then verify this information and explore the motivation for sponsorship and the individual’s ability to meet the needs of the child.158 Once Beatriz’s mother successfully completes this process, ORR will relinquish custody and care of Beatriz to her mother.

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C. Legal Process Like Alonzo, Beatriz will be charged with violating United States immigration laws and will be placed in removal proceedings.159 Beatriz’s first, and in many cases only, interaction with an attorney will occur through the Department of Unaccompanied Children’s (DUCS) Access to Legal and Child and Advocates Services Project.160 Under this program, contracted legal service organizations are required to provide Know Your Rights presentations161 and at least one individual legal screening.162 Occasionally, these organizations will conduct additional meetings to prepare children for their first immigration hearing, or they will appear on behalf of the child as a “friend of the court.”163 However, these individualized services are provided only to children who are currently being detained. Because Beatriz will be reunified with her mother, it is likely that she will not receive all of these services.164 By statute, the Executive Office for Immigration Review (EOIR) and HHS are also required to administer a Legal Orientation Program to all sponsors, such as Beatriz’s mother.165 This Legal Orientation Program (LOP) must “[a]t a minimum . . . address the custodian’s responsibility to attempt to ensure the child’s appearance at all immigration proceedings and to protect the child from mistreatment, exploitation, and trafficking.”166 The LOP also provides sponsors with a description of what will occur during the first immigration hearing, the child’s rights during detention and removal, and briefly discusses how to find legal representation.167 These legal services, however, do not guarantee that Beatriz will receive legal representation in her immigration proceedings.168 The only way for Beatriz to obtain legal representation is to either pay for representation or to seek out pro bono representation.169 Like Alonso, Beatriz will rely on SIJS as a basis to remain in the United States and as a basis to apply for a green card.170 Beatriz’s age and her father’s unknown location will make it difficult to obtain the necessary findings from a juvenile court171 in a timely manner.172 While Beatriz’s immigration proceedings are a concern, her age makes obtaining the state court findings a priority.173 Due to Texas’s definition of a minor,174 if Beatriz fails to obtain the state court order prior to her eighteenth birthday, she will age out of juvenile dependency and lose her eligibility for SIJS.175 This problem is compounded by the necessity of notifying Beatriz’s father of the pending lawsuit. Because Beatriz’s father will prove hard to locate, notifying him of the suit will be done by publication, increasing the amount of time it takes for Beatriz to attain the state court order.176 Therefore, even though Beatriz qualifies for SIJS under federal law, it is possible that she will age out of state juvenile jurisdiction before she can get the necessary findings, thus becoming ineligible for SIJS.

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3. Carlos: Child who is Not in Deportation Proceedings and who is Not in ORR Custody A. Migration Carlos is an eighteen year old boy from Guatemala. Carlos and his brother, Emiliano, began living with their aunt and uncle after their mother died and their father abandoned them. His uncle worked for a small sport fishing business. The Maras gang approached Carlos’ uncle to work as a drug pusher. When Carlos’ uncle refused, he was murdered. Fearing for their lives, Carlos and Emiliano devised a plan to flee Guatemala with their aunt. Emiliano would remain in Guatemala to work and care for their aunt, while Carlos would migrate to the United States. Once Carlos was established, he would find a way to send for Emiliano and his aunt. Carlos was able to avoid apprehension at the border and began staying with family friends in the U.S. and working at their business. When Carlos attempted to contact his brother and aunt in Guatemala, he learned that the Maras had also approached Emiliano. Like his uncle, Emiliano refused to join the Maras and was murdered. Carlos was unable to discover what became of his aunt. Carlos lives in fear of being reported to immigration and being returned to Guatemala to face the gang that murdered his uncle and brother.

B. Legal Proceedings Because Carlos was never apprehended or placed in removal proceedings, the immigration process will begin if and when he initiates it.177 Rather than using SIJS as a defense to removal, Carlos will need to affirmatively pursue it.178 This offensive position poses a significant dilemma.179 If Carlos applies for SIJS, he may receive it and a green card, but he may also be placed in removal proceedings and eventually deported.180 Alternatively, Carlos could forgo applying for SIJS; he may decrease his chances of being placed in removal proceedings, but he will also lose his chance to obtain legal status.181 If possible, Carlos should seek legal advice to determine the best course of action.182 In order for Carlos to obtain lawful status in the United States, he will need to be screened for immigration relief and find legal representation.183 However, Carlos’ age poses a significant barrier to obtaining low cost legal representation.184 As discussed in Beatriz’s case, Carlos has aged out of juvenile dependency in Texas, jeopardizing his ability to obtain SIJS.185 Free and low cost legal providers in Texas often will not take an SIJS case if the petitioner is between the ages of eighteen and twenty-one because they feel their limited resources should serve children who are more likely to obtain relief.186 In this instance, Carlos would likely be referred to various organizations and private attorneys in hopes that he can find one who is willing to take his case.187 Although Carlos has aged out of juvenile dependency in Texas, he does have limited exceptions available that could possibly still allow him establish that he is dependent on a juvenile court.188 The Texas Family Code contains provisions to extend juvenile jurisdiction beyond eighteen.189 For example, Carlos can seek these findings through a child support petition.190 In child support cases, 13

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the judge can assert jurisdiction over someone who is eighteen years or older as long as they are still attending high school if the child has a relative who he or she has been living with for six months and who is willing to file a suit affecting the parent-child relationship (SAPCR) on his behalf. 191 Attorneys in Texas have also used declaratory judgments to try to establish dependency.192 This route is risky because declaratory judgments have resulted in negative USCIS adjudications.193 Declaratory judgments only make findings; they do not change the child’s circumstance; therefore, USCIS has held that a SIJS petition relying on a declaratory judgment was submitted solely for the purposes of immigration relief and is not acceptable.194 While it is possible, the pathway to SIJS for an individual such as Carlos who is living in Texas and is over the age of eighteen is difficult and uncertain.195 If Carlos overcomes the odds and succeeds in finding legal representation and securing the state court findings, he can then petition for SIJS and his green card.196 Unlike Beatriz and Alonso, Carlos can file for both SIJS and his green card simultaneously through USCIS. Obtaining a green card would allow Carlos to live and work in the United States permanently and be protected by all the laws of the United States and his state of residence.197 However, if USCIS denies Carlos’ SIJS petition, he will be placed in removal proceedings.198 In this instance, Carlos will have already lost SIJS as a defense to removal, and unless he can successfully argue for another form of immigration relief, he will be deported.199

4. Dara: Child who is Not in Deportation Proceedings and who is in DFPS Custody A. Migration Dara is a sixteen year old child from Cambodia. Dara grew up in Svay Pak with her mother, a struggling fish farmer. They only survived because Dara’s father was living in the United States and sending money to Cambodia. Desperate, Dara’s grandmother began to borrow money from loan sharks. When the loan sharks called their debt and her grandmother was unable to pay, she approached Dara’s mother about prostituting Dara. Unable to persuade her grandmother against it, Dara’s mother sent Dara to live with her father in the United States. Dara overstayed her tourist visa and has been living as an undocumented immigrant with her father for the last three years. She attends high school and works at one of her father’s friend’s restaurants. Dara was a good student, but her attendance was irregular. Dara’s history teacher began to notice that Dara would miss school for days at a time, and when she returned to school, she was tired and withdrawn. Concerned, Dara’s teacher began looking for other signs of abuse. When she discovered that Dara was covering bruises with long sleeves and long pants, she informed the school counselor. After speaking with Dara, the school counselor confirmed the signs of abuse and reported the case to Child Protective Services (CPS).

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B. Foster Care Placement The Department of Family and Protective Services (DFPS) will conduct an investigation into the alleged child abuse and make a recommendation within thirty days of the first allegation.200 A caseworker from CPS will conduct interviews with Dara and any other persons who may have information about the situation.201 If needed, the caseworker will investigate her father’s criminal history and Dara’s medical and mental health history.202 The caseworker may also recommend that Dara have a medical or psychological examination.203 Finally, the caseworker will recommend a course of action.204 The caseworker may also remove Dara as soon as she determines that there is no reasonable way to keep her safe in her home. However, this removal must be accompanied by a court order or be approved by a judge within two weeks.205

C. Legal Process Once Dara enters CPS custody, the caseworker should work with the CPS Regional Attorney to determine Dara’s immigration status and pursue any relief for which she is eligible.206 Ideally, the Regional Attorney will screen Dara and identify her as a potential candidate for SIJS.207 If CPS determines that reunification with one or both parents is not viable, the Regional Attorney should petition the family court to make the required state court findings.208 Upon receipt of these findings, the Regional Attorney and caseworker will file simultaneously for SIJS and a green card.209 Dara’s circumstances fall within the category of cases for which SIJS was originally written, so her legal process is straightforward, and she should experience very few barriers to obtaining SIJS and her green card.210

V. FINDINGS FOR SIJS a. State Court Jurisdiction Regardless of how children get to here, where they come from, or where they are placed, each of them will have to file a case in state court to get the factual findings needed for their Special Immigrant Juvenile Status application.211 To comply with the requirements for the SIJS application, children under the age of twenty-one must obtain specialized factual findings from a juvenile court.212 A juvenile court is defined as “a court located in the United States having jurisdiction under State law to make judicial determinations about the custody and care of juveniles.”213 Under Texas law, any district court, county court, or statutory county court “has jurisdiction over juvenile matters and may be designated a juvenile court.”214 Some district courts, however, have been specifically designated as family district courts.215 Those district courts primarily handle family law matters such as child welfare, custody, child support, dependency, neglect, delinquency, and other 15

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parent and child matters.216 These courts have concurrent jurisdiction with the other district courts in the same county.217 Depending on the facts of the case and the type of action that would be best to obtain the specialized factual findings, one may decide to file an action in family district court or another court.218 Deciding which court has subject matter jurisdiction over the case is only one of the jurisdictional issues involved when filing a suit in Texas.219 The biggest jurisdictional issue facing children eligible for SIJS is the prospect of losing jurisdiction because of age.220 While the federal age restriction for SIJS petitions is twenty-one, juvenile court jurisdiction in Texas generally ceases at age eighteen.221 For the SIJS application to be valid, the juvenile court must have continuing jurisdiction over the applicant until the application is granted.222 Accordingly, a SIJS applicant in Texas typically must have his SIJS application granted before he turns eighteen or the application is invalid.223 In some cases, jurisdiction may be extended past eighteen.224 A court that has jurisdiction over a young adult—a juvenile who is over the age of eighteen but under the age of twenty-one—on the day before the young adult turns eighteen shall have continued jurisdiction over that young adult while he is in extended foster care and during the trial independence period.225 Trial independence is the six-month period after a young adult leaves extended foster care.226 A court may extend the trial independence period to up to twelve months;227 however, jurisdiction ends when the young adult turns twenty-one.228 Jurisdiction may also extend past eighteen in child support cases, if the child is still dependent on a caregiver because of enrollment in a high school program.229

b. Factual Findings After the suit has been filed in a court with proper jurisdiction, the petitioner must request that the court make specific factual findings.230 The court must make these findings for the SIJS application to be valid.231 The court must find that: (1) the juvenile is under twenty-one years of age; (2) the juvenile is unmarried; (3) the juvenile is dependent on the juvenile court; (4) reunification with one or both parents is not possible because of abuse, neglect, abandonment, or a similar basis under state law; and (5) it would not be in the juvenile’s best interest to be returned to his country of nationality or country of last habitual residence.232 The first two findings are straightforward, but the last three are more complicated. Dependency on the juvenile court has a different meaning from state to state, but in Texas, it is generally interpreted to refer to whether the juvenile court has jurisdiction over the child.233 Each state has its own laws regarding the definition of abuse, neglect, and abandonment.234 In Texas, abuse is defined in the Family Code as an act or omission including (1) “mental or emotional injury to a child that results in an observable and material impairment;” (2) “physical injury that results in substantial harm to the child;” (3) sexual contact with the child, including sexual abuse, indecency, and assault as defined under the Penal Code; (4) the use of a controlled substance by a child; (5) the use of a controlled substance that results CHILDREN AT RISK CHILDREN ON THE BORDER

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in physical, emotional, or mental injury to a child; (6) trafficking of a child; and (7) failing to make a reasonable effort to prevent any of the above.235 Neglect is defined in the Family Code as: (1) leaving a child in a situation where there is a “substantial risk of physical or mental harm, without arranging for necessary care” and demonstrating an “intent not to return”; (2) failing to provide the child with the necessary medical care, food, clothing, or shelter; (3) placing the child in a situation where there is a substantial risk that the child will be exposed to abuse; or (4) placing the child in a situation that would require “judgment or actions beyond the child’s level of maturity” or physical or mental abilities that results in bodily injury to the child.236 Finally, abandonment is defined in the Texas Family Code as: leaving a child “without provision for reasonable and necessary care or supervision.”237 Case law considering the meaning of abandonment has determined that abandonment is an intentional or willful disregard for the parental obligation to the child such that the child is totally deserted.238 The final factor a petitioner must prove is that it is against the child’s best interest to be returned to his or her home country.239 Of all of the findings, “probably the most difficult to prove is that it would be against the child’s ‘best interest’ to be returned to his or her home country.”240 In Texas, juvenile courts are accustomed to determining the best interest of the child.241 According to the Family Code, “the prompt and permanent placement of the child in a safe environment is presumed to be in the child’s best interest.”242 The code lists several factors that may be considered by judges when determining the best interest of the child, including: (1) the child’s age; (2) the magnitude of the harm to the child; (3) whether the child is fearful of returning to his or her home; and (4) the results of psychiatric examinations.243

c. Causes of Action Several causes of action can be brought in order to get the factual findings needed for the SIJS application.244 Typically, one can file a motion for a declaratory judgment, a suit affecting the parent-child relationship, or an application for appointment of a guardian.245 A declaratory judgment is a court order that “simply declares the rights of the parties, or . . . the opinion of the court on a question of law, without ordering anything to be done.”246 So, for an SIJS application, the declaratory judgment would simply state that the child has been abused, neglected, or abandoned by one or both parents; that it is not in the child’s best interest to return to his country of origin; that the child is under twenty-one years of age; that the child is unmarried; and that the child is dependent upon the court, but would not order any action to be taken.247 A suit affecting the parent-child relationship (SAPCR), on the other hand, does order an action to be taken.248 In a SAPCR, the petitioner can ask the court to do one or a combination of several things.249 A SAPCR can (1) appoint a managing conservator or possessory conservator to care for the child; (2) determine access to the child and amount of support for the child; and/or, (3) request that the court terminate the parent-child relationship.250 17

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One may decide to file a SAPCR as opposed to another proceeding as a vehicle for the required SIJS findings for several reasons.251 First, abuse, neglect, and abandonment most commonly arise in the context of a SAPCR proceeding.252 Second, it is an avenue for other family members to gain managing conservatorship of the child if the child is in the United States without a parent.253 Finally, SAPCR is a common procedure that is easily recognizable by the courts and can seamlessly integrate the required SIJS findings.254 To make the order applicable for the SIJS application, the petitioner should include a request that the court specifically find the required factual findings in the final order.255 In order to file a SAPCR, the petitioner must have standing to file.256 In general, a SAPCR may be filed before the court by the child’s parent, the child herself through an authorized representative, a court-appointed custodian, the state, a person who has had possession of the child for at least six months, or the guardian of the child’s person or estate.257 In the event that both parents are dead, a relative such as a grandparent or aunt or uncle, may file the suit.258 In special situations, a third degree relative may file a SAPCR, even if the parents are not deceased, if “[t]he requested order is necessary because the child’s present circumstances significantly impair the child’s physical health or emotional development,” or if both parents or the surviving parent consent to the suit.259 Another cause of action that is compatible with the SIJS factual findings is an application for appointment of a guardian.260 A court may appoint a guardian to protect the wellbeing of an incapacitated person.261 A minor, a person under the age of eighteen, is considered an incapacitated person under Texas law.262 This suit is a good option if the child is in the United States without a parent.263 The potential guardian, usually either a relative or a family friend, can file an application to show that it is in the child’s best interest that the relative or friend be appointed as guardian.264 Deciding whether to pursue an application for guardianship over a SAPCR should be based on the specific facts of the child’s case. An application for guardianship can easily incorporate the necessary SIJS findings because it also asks the court to determine the best interests of the child.265 Guardianship is a good option for a child staying with relatives but who has not been with the relatives for at least six months because possession of the child for at least six months is not a requirement for standing to file a guardianship suit.266 This distinction is especially important in the case of a potential SIJS applicant who is near the age of eighteen but whose relatives or friends that she lives with cannot file a SAPCR petition on her behalf because she has not lived with them for at least six months.267 In that case, time is of the essence to get the required SIJS findings because of the potential that the applicant will “age out” of juvenile court jurisdiction.268

d. Guardian Ad Litems After the suit is filed, the court has the option to appoint a guardian ad litem to represent the child’s best interests.269 The representative’s job is to ensure that the child’s best interests are taken into consideration; however, he does not have CHILDREN AT RISK CHILDREN ON THE BORDER

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to be an attorney.270 Nevertheless, a guardian ad litem has access to all court documents and records concerning the case, may attend all legal proceedings, and may submit a report regarding her recommendations relating to the child’s best interest.271 The court, however, cannot require that the guardian ad litem represent the child’s interests without reasonable compensation, which will be provided by the parties to the suit.272 The parties’ ability to pay for the guardian ad litem’s services will be one of the issues the court will take into consideration when determining whether to make an appointment.273 In cases where termination of parental rights is an issue, if the parent is not present, the court must appoint an attorney ad litem to represent the interests of the absent party.274 In contrast to a guardian ad litem, an attorney ad litem actually represents a party in a suit as that party’s lawyer.275 In SIJS cases, parents are often not present, and the child is staying with a relative, family friend, or may be in the custody of the Office of Refugee Resettlement.276 Therefore, an attorney ad litem is necessary to represent the absent parent.277 The court must also appoint an attorney ad litem to represent a child in “a suit filed by a governmental entity requesting termination of the parentchild relationship or to be named conservator of a child.”278 Accordingly, the appointment of an attorney ad litem is required when the child is in the custody of the Department of Family and Protective Services (DFPS).279 In 2009, there were about 400 undocumented children in DFPS care.280 DFPS only has custody of children who have been abused, neglected, or abandoned.281 So it follows that most, if not all, of the 400 undocumented children in DFPS custody in 2009 qualified for SIJS and should have gone through a SAPCR proceeding.282

e. Evidence One of the difficulties that arises as a result of the nature of SIJS cases is the ability to gather evidence sufficient to meet the burden of proof.283 Because the abuse, neglect, or abandonment frequently occurs in the child’s home country, it is difficult to gather evidence of the offenses.284 As a result, the child’s testimony is usually the strongest piece of evidence available.285 The testimony, however, is generally not enough on its own to meet the burden of proof so the petitioner must find other evidence.286 Testimony by a relative is usually helpful and persuasive.287 However, if the relative is not in the United States, it may be difficult to locate the relative and obtain the testimony.288 If the relative can be located, it is possible to give a deposition of the relative over the telephone or other remote electronic means.289 A certified physician or psychiatrist may also examine the child and then offer testimony in support of the child’s petition.290 A psychiatrist’s examination may be helpful in proving abuse, neglect, or abandonment, especially if the abuse, neglect, or abandonment is not recent.291 A medical evaluation of the child could also be useful because the child may still be suffering from the physical effects of abuse and neglect, such as improperly healed bones, malnutrition, or scarring, even if the abuse or neglect happened years ago.292 It may also be possible to get the child’s medical records 19

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from his or her home country.293 Unfortunately, such records are not always available because of poor recordkeeping in the child’s home country, lack of medical facilities near the child’s former home, or neglect in seeking medical attention for the child.294

f. Immigration Court Once the child obtains an order from family court making the required factual findings, the child can submit his or her SIJS application to U.S. Citizenship and Immigration Services (USCIS).295 For all applications, “[t]he Secretary of Homeland Security must consent to the grant of” SIJS.296 This consent is required to ensure that the applicant sought SIJS as relief from abuse, neglect, or abandonment and not for the purpose of obtaining lawful permanent residency.297 In the case of a child who is in removal proceedings, the child will first be scheduled for a master calendar hearing in the immigration court nearest to the child’s initial ORR placement.298 At the master calendar hearing, a majority of the children ask for a continuance so they can either find pro bono representation or have more time to apply for immigration relief.299 These children often appear on their own behalf, without legal representation.300 Once the child’s SIJS application to USCIS has been approved, the child can file for permanent residency.301 In determining whether to grant the child permanent residency, the court must determine if the child is eligible for adjustment.302 A child with SIJS may be denied lawful permanent residency for several reasons.303 The court will determine whether the child is inadmissible because of one of the grounds outlined in the United States Code.304 For example, grounds for inadmissibility for lawful permanent residency include having a publically significant communicable disease (such as HIV), a record of having committed certain crimes (such as those involving moral turpitude, drugs, or terrorism), being unable to support oneself, having illegally entered the country, or having smuggled other immigrants into the country.305 Children with SIJS may be exempt from some of the above, such as entering the country illegally or being unable to support themselves.306

VI. The Recent Influx of Unaccompanied Migrant Children The skyrocketing influx of unaccompanied migrant children (UMC) sparked debate in the summer of 2014. Though this publication specifically addresses Special Immigrant Juvenile Status (SIJS), the discussion surrounding UMC in Texas and throughout the country lends important context to the issue. The influx of unaccompanied children at the Southwest Border has primarily come from four countries: Guatemala, El Salvador, Honduras, and Mexico.307 Ninety-five percent of all referrals to the Office of Refugee Resettlement (ORR) have come from three countries: Guatemala, El Salvador, and Honduras.308

CHILDREN AT RISK CHILDREN ON THE BORDER

20

UMC ENCOUNTERS AT THE BORDER BY COUNTRY 309 Country

FY 2011

FY 2012

FY 2013

FY 2014

El Salvador

1,394

3,314

5,990

16,404

Guatemala

1,565

3,835

8,068

17,057

Honduras

974

2,997

6,747

18,244

11,768

13,974

17,240

15,634

Mexico

COUNTRY OF ORIGIN FOR UMC REFERRED FROM DHS TO ORR 310 Country

FY 2012

FY 2013

FY 2014

El Salvador

27%

26%

29%

Guatemala

34%

37%

32%

Honduras

27%

30%

34%

Mexico

8%

3%