State-Court Amnesty for Illegal Alien Juveniles?

November 19, 2019

IRLI recommends closing loopholes in ballooning visa program

WASHINGTON—The Immigration Reform Law Institute (IRLI) has submitted a public comment to the Department of Homeland Security (DHS) calling for reforms to prevent the abuse of a little-known but growing green card program for juvenile aliens who have been declared to be dependents of a state juvenile court. Typically, the beneficiaries of this program, called the Special Immigrant Juvenile Status (SIJS) program, have been unlawfully present in the United States before receiving their green cards.

The government originally proposed regulations for SIJS visas in 2011. Due to infighting between federal adjudicators and anti-borders lobbying groups, the regulations were never finalized. The Trump administration reopened the period for public comment in October 2019, after issuing a series of administrative decisions emphasizing that federal law prohibits granting SIJS visas primarily as an immigration benefit.

Before an SIJS green card may be granted, federal immigration law requires state courts to order that an alien juvenile has been so badly abandoned, neglected, or abused by his or her parents that their parental rights are terminated and the “juvenile”—who by law can be up to 21 years old—becomes a ward of the court. The new decisions make clear that state courts must provide complete documentation of the alleged abuse before U.S. Citizenship and Immigration Services (USCIS) will approve a green card.

“IRLI’s primary concern with the proposed regulations is to effectuate the intent of Congress—that the agency does not consent to SIJS visas if abuse or neglect has not actually happened, and the primary intent is to obtain an immigration benefit,” stated Dale L. Wilcox, executive director and general counsel of IRLI. “It is vital that this program not be turned into yet another state-court driven judicial amnesty.”

Of the seven reforms proposed by IRLI, the most significant is the recommendation that USCIS take responsibility for determining whether it is in the “best interest” of an alien juvenile to be returned to his or her home county, after a state juvenile court has found that the alien was abused or abandoned in the United States.

“The pros and cons of parental reunification and repatriation are very different and sensitive issues,” explained IRLI Senior Counsel Michael Hethmon. “While state juvenile courts are experienced in assessing parental neglect claims, only the federal government has the expertise and resources to determine whether resources exist in the home country to allow for a full repatriation, after what in most cases has been a dangerous and illegal journey to the United States.”

Other recommended reforms include: requiring collection of DNA samples to more accurately prove identity, family relations, and any prior criminal record; ensuring that abusive parents never obtain U.S. visas or immigration benefits after harming their own children; setting more uniform nationwide definitions of when a juvenile becomes emancipated and thus no longer eligible for an SIJS green card; and better rules for ensuring that a juvenile alien who is dependent on a state court does not move out-of-state without informing state and federal officials.

IRLI filed its public comment in response to the notice of reopening of the comment period for proposed rulemaking (NPRM), DHS Docket No. USCIS-20009-0004, Special Immigrant Juvenile Petitions, published in the Federal Register at 84 Fed. Reg. 55250 on October 16, 2019.

For additional information, contact: Brian Lonergan • 202-232-5590 • [email protected]