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Immigration Law: Special Immigrant Juvenile

After the creation of the Department of Homeland Security in 2003 after the September 11 attacks, the enforcement of immigration laws was transferred from the Immigration and Naturalization Service(INS) to the Department of Homeland Security.

SIJP

Special Immigrant (“SI”) Juvenile (“SIJ”) Petition (“SIJP”)

Section 101(a)(27)(J) of the Immigration and Nationality Act of 1952 (INA or Act), as amended, 8 U.S.C. 1101(a)(27)(J), permits the Secretary of Homeland Security to grant special immigrant juvenile classification to certain aliens whom a juvenile court has declared to be dependent on the court, or whom the juvenile court has committed to or placed under the custody of a State agency, department, individual, or entity. The juvenile court must determine that reunification of the alien with one or both parents is not viable due to abuse, neglect, abandonment, or similar basis under State law. In addition, it must be determined in administrative or judicial proceedings that the return of the alien to the alien’s or the alien’s parent’s country of nationality or last habitual residence would not be in the alien’s best interest.

Eligibility Criteria (§ 235(d) of the TVPRA (“Traffic Victims Protection Reauthorization Act,” Public Law 110–457, 122 Stat. 5044 (Dec. 23, 2008)) which amended INA § 101(a)(27)(J)(i) & proposed regulations: 76 Fed. Reg. 54985-54986).

    • Is present in the United States;
    • Is under 21 years of age at the time of filing;
    • Is unmarried;
    • Has been declared dependent on a juvenile 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.  Such dependency, commitment, or custody must be in effect at the time of filing and continue through the time of adjudication, unless the age of the petitioner prevents such continuation;
      • A juvenile is dependent upon the court if he or she “has been the subject of judicial proceedings or administrative proceedings authorized or recognized by the juvenile court.” (8 C.F.R. § 204.11(c)(6); proposed rule 8 C.F.R. § 204.11(b)(6), 76 Fed. Reg. 54985).
      • In MA, courts that could exercise jurisdiction over juveniles include the Juvenile Court, the Probate and Family Court, and, in some circumstances, the District court.
    • Is the subject of a State or juvenile court determination that reunification with one or both parents is not viable due to abuse, neglect, abandonment, or a similar basis under State law;
    • Has been the subject of a determination in judicial or administrative 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
    • Obtains consent from the Secretary of Homeland Security to classification as a special immigrant juvenile.

 

Presentation slides by KIND (Kids in Need of Defense) on Special Immigration Juvenile Status by Laura Nally.

The Office of Refugee Resettlement (ORR)

 

State Court Procedures:

 

Immigration Procedure

  • Second Step for SIJ.
  • File SIJ Petition to USCIS for classification as a “special immigrant” under the provisions relating to juveniles. If the petition is approved, the child may then file an application for adjustment of status before the USCIS or the Immigration Court of the Executive Office for Immigration Review.