Tuesday, May 30, 2017

Virginia Court of Appeals Considers SIJ cases in June

The federal program, Special Immigrant Juvenile Visa Program, is a current path to lawful permanent residency for children who have experienced neglect, abuse or abandonment by a parent and who cannot return to their home countries. To obtain lawful permanent residency requires the child to obtain an Order in his state court prior to filing with USCIS. The Order typically places the child in the custody or adoptive placement of another parent or a third party. Additionally, the Order makes findings of fact (SIJ Findings of Fact) which permit the child to then file for a green card with USCIS.

There is great disparity among states, and even among counties within a state, as to whether to issue the SIJ Order. The Virginia Court of Appeals is considering these questions this month and the outcome of the two cases on appeal will determine the availability of SIJ status for children in Virginia.

The core issue currently plaguing the Virginia courts is a debate surrounding whether local judges have the jurisdiction to making rulings on cases that ultimately will become federal immigration cases. As of now, there is a lot of confusion and misunderstanding surrounding the situation. Inconsistency has sprung up, stemming from differences in experiences between local judges in dealing with visa/immigration cases. In areas which have a large unaccompanied minor population, such as Fairfax County, judges are fairly confident in determining whether the SIJ Order should be issued in a particular case. In contrast, judges who come from localities where visa/ immigration cases are rare, may feel that the decision is outside of their expertise.

Advocates have argued that local courts are in fact, not making immigration decisions but are taking the necessary step for these young immigrants to start the process. The argument is that the SIJ findings of fact are issued within the context of custody or adoption cases that local judges would be familiar with, in which the court decides which living situation is in the child's best interests. Further, that children are vulnerable and in need of protection, which is the mandate of the state court in family law type cases.

Critics have asserted that local judges do not have the authority to make immigration decisions and that the state courts should not get involve in federal immigration issues. Specifically in assessing the two cases being evaluated by the Virginia Court of Appeals, factual questions were raised- whether the biological fathers had knowledge of the proceedings, and whether there was substantial evidence to warrant mistreatment from the fathers. On a larger scale, there is speculation that immigrant parents have been abusing this program and making false claims, with the two parents actually colluding on sending the child to the United States.

Questions have also been raised concerning whether a young undocumented immigrant who joins an illegally documented parent here can legitimately be seen as “unaccompanied.” There  have been bills proposed in the past year to address these issues, with Representative Jason Chaffetz (R-Utah) proposing that the term “unaccompanied minor” not apply to those with a suitable guardian in the United States to assume custody. As well as the bill introduced by Rep. John Carter (R-Texas) which would restrict eligibility for the SIJ program to juveniles who don’t have parents in the United States.

Ultimately, the Virginia Court of Appeals decision, expected to be rendered by late June, will clarify which children may use the Virginia Courts to obtain the state court order that would then allow them to apply for SIJ status. Our office has worked with many deserving youth who have benefited from this program and are now attending college or working. We are hopeful that the Court of Appeals decision will bring uniformity to the process in Virginia and clarify that the Virginia Courts do have jurisdiction to render SIJ Orders in the context of custody or adoption cases.

Drafted by Amanda Wong, staff member of the Law Offices of Karen S. Law, PLC.

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