Children in Legal Guardianships Eligible for Special Immigrant Juvenile Status
by Zabrina Aleguire and Gregory Chen
Whether due to lack of awareness or inadequate resources, a large segment of children in legal guardianships have not obtained legal resident status through SIJS.
In 1990, Congress enacted an important immigration benefit that enabled undocumented children who had been abused, neglected, or abandoned to petition for lawful permanent resident status, provided they came under the protection of a state court.1 Since the enactment of this benefit, called Special Immigrant Juvenile Status (SIJS), thousands of children have obtained permanent U.S. residency through this route.
Under this program, the most common method is for a child to enter the state child welfare system, be placed in a foster or group home and, with the help of an attorney or other advocate, to apply for SIJS. However, another population of children eligible for SIJS, but who are underrepresented in the program, includes those living under the care of a courtappointed legal guardian. Nationwide, a large segment of abused, neglected, and abandoned children receive protection through court-supervised “kinship care” arrangements created outside of the child welfare system.2 Whether due to lack of awareness or inadequate resources, few children in legal guardianships have obtained their legal resident status through SIJS.3 For this reason, social workers, attorneys, and other child advocates working with undocumented children in legal guardianships should make it a regular practice to screen every undocumented child client for SIJS eligibility. This article explains the legal framework and criteria for evaluating children for SIJS benefits.
Legal Guardianship: An Alternative to the Child Welfare System
In the mid 1900’s, before the development of the child welfare system, local civil or probate court systems appointed guardians for abandoned and abused children. While the introduction of state “dependency” court systems in the 1960’s and 1970’s channeled most abused, neglected, and abandoned children into the child welfare system, legal guardianships have remained an important legal option for children who need a safe and stable living environment.4 Recent statistics show, for example, that the majority of children in California probate court guardianships are victims of abuse, abandonment, or neglect, rather than orphans.5 In Shasta County,California,most “probate guardianship cases involved prenatal drug abuse, child abuse, and neglect, as did all the cases filed in that county’s dependency court.”6 Furthermore, many immigrant children who have suffered abuse,neglect,or abandonment end up in legal guardianships rather than foster care, due to fear of or lack of awareness about government institutions, or greater reliance upon family support systems within immigrant communities.7 Undocumented children in guardianships, just like those in foster care, represent a highly vulnerable population. They desperately need support in stabilizing their home environment, and in achieving legal immigration status through programs like SIJS.>
How to Identify an Appropriate Legal Guardianship Case for SIJS
In screening clients for SIJS eligibility, social workers, caseworkers, and attorneys first should consider three questions:
- Can the child be considered “dependent” on a juvenile court?8
- Is reunification with the child’s parents likely to occur?
- Is it in the “best interests” of the child to remain in the United States, and in the care of the legal guardian?9
Before the child can apply for SIJS, the state court exercising jurisdiction over the guardianship must evaluate each of these questions, and certify the child’s eligibility (See “Sample Order”). The state court may certify eligibility upon granting the guardianship, or at any time afterwards, as long as the court retains jurisdiction over the care and custody of the child. Once the court issues the order, the child sends the order,along with an application for SIJS and lawful permanent resident status, to the U.S. Citizenship and Immigration Services (USCIS), formerly the Immigration and Naturalization Service.
While the state court’s assistance is necessary for certification, it does not have the power to confer any immigration benefit; USCIS rules on the SIJS and lawful permanent resident applications.10 Filing an application with USCIS may involve serious risk.11 Accordingly, the child should consult with an immigration attorney before submitting an application.
In the majority of states, probate courts have jurisdiction over legal guardianships, while in other states juvenile or family courts adjudicate guardianships.12 This variance accounts for the broad definition of juvenile court used by federal regulations for SIJS purposes,which allows any state court with authority over “the custody and care of juveniles” to make SIJS findings.13
Children with Legal Guardians Qualify as “Dependents” of the State Court
To qualify for SIJS, a child must “have been declared dependent on a juvenile court.”14 While the definition of dependent varies from state to state, for SIJS purposes, children in legal guardianships have been found to qualify as dependents of the state court:15
The acceptance of jurisdiction over the custody of a child by a juvenile court, when the child’s parents have effectively relinquished control of the child, makes the child dependent on the juvenile court, whether the child is placed by the court in foster care or, as here, in a guardianship situation.16
The federal definition of dependent in the SIJS context encompasses situations beyond those involving children in foster care dependency. As long as the child’s custody and care remain under the court’s supervision, the child qualifies as a dependent under SIJS.17 For this reason, the guardianship jurisdiction should not terminate before the applicant is granted lawful permanent resident status.
Advocates should consult the jurisdictional statutes concerning legal guardianships, to evaluate whether the state court continues to exercise authority over the child’s custody or care. Indications of the court’s continuing authority include the power to modify the guardian’s powers regarding custody or visitation. State courts commonly retain the authority to terminate the guardianship if it is no longer in the child’s best interest. The state court sometimes must be notified of any changes in residence.18 In some states, such as California and Florida, guardians must submit an annual status report to the probate court.19
Children in Legal Guardianships Must Be Eligible for Long-Term Foster Care
To qualify for SIJS, a child must be “deemed eligible for longterm foster care due to abuse, neglect, or abandonment.”20 Federal regulations clarify that a child is eligible for such care when “family reunification is no longer a viable option.”21 In many cases, when a court appoints a guardian, reunification with the child’s parents is not feasible because they are deceased, their identity is unknown to the child, or they are unable to provide care and supervision. In cases where the child remains in contact with the parents, advocates should evaluate the likelihood that the child will reunify with his or her parents before proceeding with an SIJS application.
The SIJS regulations explicitly state that a child who “has been adopted or placed in a guardianship situation” is “eligible for long-term foster care.”22 In In the Matter of Menjivar, for example, the federal immigration Administrative Appeals Unit found that a Salvadoran boy in a legal guardianship met the requirement of eligibility for longterm foster care.23
Furthermore, not all immigrant children in legal guardianships are eligible for SIJS status, because there must be an underlying factual basis of “abuse, neglect, or abandonment.”24 For the purposes of SIJS, federal law does not require that findings of abuse, neglect, or abandonment have been sustained against the child’s parents (as in a foster care dependency case). Rather, the SIJS statute merely requires the state court to find that the guardianship was granted due to abuse, neglect, or abandonment.
It is in the Juvenile’s Best Interest Not to Be Returned to Country of Origin
The last finding necessary for SIJS is that it is not in the juvenile’s “best interest” to be returned to his or her country of origin.25 Generally, when a state court reviews a guardianship case, it assesses whether the guardianship is in the best interest of the child. A child would not be eligible for SIJS if the state court concluded that it is in the child’s best interest to be placed with his or her parents in the country of origin. For a child to qualify for SIJS, the court must find that it would be better for him or her to remain with the guardian, than to be returned to the country of origin.
Conclusion
While undocumented immigrant children who have been abused, neglected, or abandoned continue to be cared for in legal guardianships, this population is still underrepresented among children obtaining SIJS and lawful permanent resident status. Frequently, children in guardianships have suffered the same hardships and abuses as children in foster care dependencies. By helping these children obtain legal permanent residency through SIJS, advocates and service providers will enable them to gain greater stability and independence in their lives.
Zabrina Aleguire was a legal intern at Legal Services for Children in 2003, and is currently a student at New York University School of Law. Gregory Chen was a staff attorney at Legal Services for Children in San Francisco, and is now policy director for Immigration and Refugee Services of America in Washington D.C.
Footnotes
1See The Road to Permanent Resident Status for Undocumented Foster Children - Special Immigrant Juvenile Status, ABA Child Law Practice,Aug. 2002, at 81, 86-90.
2 “Kinship care,” broadly defined by the U.S. Dep’t of Health & Human Servs. Report to the Congress on Kinship Foster Care (2000), is “any living arrangement in which a relative or someone else emotionally close to the child takes primary responsibility for rearing the child.” The number of children living under the care of grandparents in guardianship arrangements has continued to increase nationally. See Kari Haskell, When Grandparents Step Into the Child Care Gap, Money Can Be Scarce, N.Y. Times, Nov. 30, 2003, at A29 (citing a 30-percent increase in grandparent-headed households from 1999 to 2000).
3In California and New York, abused, neglected and abandoned children have applied for and obtained SIJS and lawful permanent resident status. See the “Resources ” box for additional resources.
4See generally, Jacob Leos-Urbel et al., State Policies for Assessing and Supporting Kinship Foster Parents, Assessing the New Federalism, The Urban Institute 2 (1999); Sonia Gipson Rankin, Why They Won’t Take the Money: Black Grandparents and the Success of Informal Kinship Care, 10 Elder L.J. 2002, at 153, 166; Virginia G. Weisz and Suzanne McCormick, Abandon Probate Court for Abandoned Children: Combining Probate Guardianship of the Person and Dependency Into One Stronger,Fairer Children’s Court, 12 S. Cal. Rev. L. & Women’s Stud., 2003, at 191, 195.
5Weisz and McCormick, supra at 195.
6Id.
7See DHHS Report, supra at 10. See also Rankin, supra at 159.
8Federal regulations define “juvenile court” as a state court having “jurisdiction under State law to make judicial determinations about the custody and care of juveniles.” 8 C.F.R. § 204.11.
98 U.S.C. § 1101(a)(27)(J).
10Note that in those cases in which the child has a case pending before an Immigration Judge, the Immigration Judge will adjudicate the permanent resident application.
11For example, individuals who have a history of drug dealing or other criminal behavior may be barred from obtaining permanent resident status.
12Jennifer Renne, Reasonable Efforts to Finalize a Permanency Plan for Legal Guardianship, ABA Child Law Practice, 2001, at 129, 130.
138 U.S.C. § 1101(a)(27)(J); 8 C.F.R. § 204.11(a).
148 U.S.C. § 1101 (a)(27)(J)(i). Attorneys drafting orders for a state court should include a finding that the child is a “dependent of the court” or is “dependent upon the court.” It should be noted, however, that “there is no requirement that the State court decree contain the specific statement that thebeneficiary is dependent upon the court.” In the Matter of Menjivar,A70117167 A.A.U. 1, 4 (INS Administrative Appeals Unit,Dec. 27, 1994).
15See Menjivar, supra.
16Menjivar, supra at 4.
17E.g.,New York law states,“the family court or surrogate’s court shall retain continuing jurisdiction over the parties and the child and may, upon its own motion or the motion of any party, revoke, modify or extend its order....” NY SOC SERV § 384-b (2003).
18E.g., see AZ ST 14-5313 (2003).
19Florida’s law requiring submission of an annual guardianship reports explains,“[t]he court shall review the appropriateness and extent of a guardianship annually.” FL ST §744.372 (2003).
208 U.S.C. § 1101(a)(27)(J)(i).
218 C.F.R. § 204.11(a).
228 C.F.R. § 204.11(a) (emphasis added).
23Menjivar,supra at 4.
24 8 U.S.C. § 1101(a)(27)(J)(i).
258 U.S.C. §1101(a)(27)(J); 8 C.F.R. § 204.11(d)(2)(iii). This determination may be made by any “court or agency recognized by the juvenile court and authorized by law to make such decisions.” 8 C.F.R. § 204.11(d)(2)(iii).
