The Evolving Role of Special Immigrant Juvenile Status

Unaccompanied children sit together. Courtesy skeeze/Pixabay.

Unaccompanied children sit together. Courtesy skeeze/Pixabay.

In 2012, the United States experienced an influx of unaccompanied minors entering the country at the southern border, a trend that persists today. Over the past two and a half years, more than 120,000 unaccompanied minors have entered the United States in this fashion. Most unaccompanied minors seek legal relief through Special Immigrant Juvenile Status (SIJS). This avenue is not the only form of relief available, but because of its expedited timeline and lower burden of proof, it has been the preferred method of achieving lawful permanent residency in the US. However, on April 12, 2016 the Department of State (DOS) announced that Special Immigrant Juveniles from El Salvador, Guatemala, and Honduras were oversubscribed. As a result, the US Citizenship and Immigration Services (USCIS) have stop accepting status adjustments and immigrant visas for children in this category. This announcement has left thousands of minors in limbo as policy makers and lawyers try to figure out what will happen next.

Congress created Special Immigrant status in 1990, and in 2008 eligibility was expanded to children who have been abused or abandoned by one parent, making the visa more accessible than other forms of relief (i.e. asylum status, immigration relief as victims of trafficking or crime, Temporary Protection Status or Deferred Action for Childhood Arrivals). As a result, applications for SIJS skyrocketed. According to an NPR report by Richard Gonzales and Marisa Peñaloza, the number of SJIS visas issued increased from 1,600 in 2010 to more than five times that ammount in 2015. At present, an unaccompanied minor may be able to receive Special Immigrant Juvenile Status if (1) they are declared dependent by the juvenile court; (2) “reunification with one or both of the immigrant’s parents is not viable due to abuse, neglect, abandonment, or a similar basis found under state law”; and (3) return to the country of nationality is not in the child’s best interest. Once SIJS is obtained, it is possible to then apply for lawful permanent residency (a green card). Applicants must also meet some additional criteria such as being law abiding, unmarried, and within the age limit.

Some, such as David North at the Center for Immigration Studies, a Washington, D.C. based think tank, call for decreased immigration and adamantly oppose Special Immigrant Juvenile Status. Others, such as Laila Hlass, recognize the positive intent of SIJS, yet seek reform, arguing that differences among states lead to disparities in the implementation of the SIJS statute nationwide. Meanwhile, advocates like Lenni Benson, view SJIS as a crucial avenue of relief for children. Benson claims SJIS does not attract unaccompanied minors, rather minors flee their home countries out of necessity, to escape violence and abuse. Regardless of which position one takes, the discussion around Special Immigrant Status is about to become more opaque.

As noted above, the Department of State will no longer issue Special Immigrant Juvenile Status to unaccompanied minors from El Salvador, Guatemala, and Honduras (also known as the Northern triangle). Violence in their home countries has caused a surge of children from this region. As of May 31, 2016 there have been 29,893 unaccompanied minors from the Northern triangle, compared to 10,146 in the 2012 fiscal year. As a result of oversubscribed SIJS visas, USCIS is not accepting status adjustments and immigrant visas throughout the remainder of the fiscal year for children from the Northern triangle.

The practical result of this announcement is that children, sometimes siblings, who arrived in the US just a few months apart, will potentially face different outcomes in their immigration statuses. Thousands of unaccompanied minors who fled to the US now find themselves in limbo. Technically, they qualify for Special Immigrant Status, yet for children from Honduras, Guatemala, and El Salvador, these visas not currently available. Without a path to permanent residency, these youths will not be eligible for federally reimbursed services such as healthcare, Temporary Assistance for Needy Families, Supplemental Security Income, the Supplemental Nutrition Assistance Program, and federally funded foster care and adoption subsidies.

Furthermore, it is unclear how long these minors will have to wait for SJIS or another means of resolving their status. Based on the May 2016 Visa Bulletin, it does not appear that any action will be taken until the end of the 2016 fiscal year at the earliest. Attorneys, for those minors lucky enough to have legal representation, are also entangled in the murky waters of DOS’s announcement. As Tanishka Cruz, a lawyer with Legal Aid Justice Center, notes, before the announcement, “I was able to tell a child, ‘This is what you can expect at every stage of litigation.’ But now it’s a lot more unclear.” Despite attempts by advocacy groups to interpret the DOS’s proclamation, the fog shows no signs of lifting. As the DOS reports, “It is extremely likely that the India and Mexico Employment Fourth Preference categories will also become oversubscribed at some point.” With undocumented minor immigration at full force, the issue of oversubscription is likely to spread to countries beyond the Northern triangle, halting SIJS allocations and causing confusion for all involved.

Jacqueline Stykes is a second-year student at Columbia Law School and a staff member of the Journal of Transnational Law.

Sachs 8_Small B symbol_end last sent