Over the past several years, “juvenile courts” throughout the United States have been confronted with a growing number of applications from non-U.S. citizens who seek to qualify for Special Immigrant Juvenile Status (SIJS) under federal immigration law. Family Court judges in New York State—talented professionals in their field who are no strangers to expanded caseloads—have become quite experienced in handling these matters. It is suggested here that juvenile courts may benefit significantly from the assistance of others to get this important job done, particularly the attorneys representing SIJS applicants.
SIJS was created by the Immigration Act of 1990, as amended, and enables abused, neglected, abandoned (or other “similar basis”) juveniles under the age of 21 to apply for lawful permanent residency in the United States.
To qualify for this unique and increasingly in-demand federal benefit, an applicant must petition the juvenile court for an order, referred to as a “Special Findings Order,” confirming that the he or she meets all the statutory qualifications. The special findings order typically states that: (1) the petitioner is under the age of 21; (2) he or she “has been declared dependent on a juvenile court located in the United States” 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”; (3) reunification with one or both of the petitioner’s parents “is not viable due to abuse, neglect, abandonment, or a similar basis found under state law,” and (4) it would not be in the petitioner’s best interest to be returned to his or her country of nationality.
Once an applicant obtains a special findings order, he or she may submit an application to federal immigration authorities who decide whether the SIJS application will be approved.
Congress directed juvenile courts throughout the United States to make the factual findings necessary to support a SIJS application—although it provided no funding to fulfill this mandate. New York’s Family Court judges are well-versed in making “best interest” determinations and they have professionally embraced the federally-mandated SIJS role. In the last several years, the Family Courts in New York City have issued (at least) hundreds of special findings orders, paving the way for qualified non-U.S. citizens lawfully to build their lives here.
What Congress may not have anticipated is the significant growth in the number of SIJS applications and the concomitant burden upon local resources, including the Family Courts. According to the U.S. Department of Homeland Security, the number of immigrants granted lawful permanent residency pursuant to the SIJS statute more than doubled between 2000 and 2010 from 659 to 1,492, and the number continues to grow. As the number of undocumented juveniles in New York (and in other states, including California and Texas) has risen, not surprisingly, there has been a sharp increase in SIJS petitions.
Family Court judges do an extraordinary job managing their heavy caseloads. However, they are not always presented with sufficient information to make the factual findings required. SIJS petitions may not always be tied to ancillary proceedings in which there is an extensive record (such as abuse and neglect cases), and are sometimes presented at the 11th hour, e.g., just prior to the applicant’s 21st birthday. The court may be constrained to rely upon the testimony of a single witness, i.e., the minor-petitioner. One or both of the minor’s parents may be located in a foreign jurisdiction, and there may be no available third-party to corroborate the child’s account. Understandably, because SIJS petitions are not “adversarial,” the Family Court will not be able to rely upon the check and balance of an “opposing” counsel’s input.
What can be done? One relatively simple step attorneys can take to assist Family Court judges—and to expedite SIJS petitions—is to submit to the court their own affidavit in support of the SIJS petition.
Attorney affidavits and declarations are commonly used in federal and state court in a variety of circumstances, including to verify the facts in a complaint and to authenticate documents. Attorney affidavits would be enormously useful in the SIJS context, although there is currently no statutory requirement that they be employed. A SIJS petitioner’s attorney should affirm to the Family Court, perhaps among other things, that: (1) he or she has conducted due diligence; (2) he or she is familiar with the facts and circumstances of the SIJS petition; (3) the petition is accurate and is being submitted in good faith and for a proper purpose; (4) the petitioner satisfies all of the SIJS statute’s requirements; and (5) he or she has provided notice of the petition to the relevant parties, including the petitioner’s parents.
This simple mechanism of an attorney affidavit would go a long way toward expediting the SIJS application process and developing an appropriate record to support the Family Court’s special findings order.