By Sarah Bronstein
On September 6, 2011, the USCIS issued proposed regulations implementing changes to the Immigration and Nationality Act (INA) relating to Special Immigrant Juvenile Status (SIJS) (76 FR 54978) (Sept. 6, 2011). SIJS is an immigration benefit available to children who have been the victims of abuse, abandonment or neglect. The proposed regulations incorporate several legislative amendments culminating in the significant changes that were made by the William Wilberforce Trafficking Victims Protection Reauthorization act of 2008 (TVPRA 2008).
Age-Out Provisions. Under the TVPRA 2008 and the proposed regulations, a petition for Special Immigrant Juvenile Status (Form I-360) may be approved as long as the child was under the age of 21 when the petition was filed. Additionally, the proposed regulations no longer provide for automatic revocation of the petition of an applicant who turns 21 prior to the adjudication of the application for adjustment of status.
Juvenile Court Dependency. Prior to the TVPRA 2008, the INA required that the juvenile court make a finding that the child was eligible for long term foster care. While many advocates successfully pushed the boundaries of the statute, there was concern that only children who were in state foster care were eligible for SIJS. The TVPRA 2008 amended the statute to allow for eligibility for a child who had been declared dependent on a juvenile court, or who had been legally committed to or placed under the custody of a State agency or department of a State, or an individual or entity appointed by a State or juvenile court. The proposed regulations clarify that adoption and guardianship proceedings fall under the meaning of the statute.
Juvenile Court Jurisdiction. The previous regulations required that the juvenile court maintain jurisdiction over the child through adjustment of status. The proposed regulations require that juvenile court dependency remain in effect through adjudication unless the child’s age prevents continued jurisdiction. Many state juvenile courts will not maintain jurisdiction beyond the age of 18. The TVPRA 2008 locks in the child’s age at the time of the filing of the I-360, therefore in order to remain consistent with this change, the proposed regulations provide this exception to the ongoing juvenile court jurisdiction requirements if the reason for the lack of jurisdiction is solely age.
Viability of Reunification with One or Both Parents. One of the most significant changes in the statute that was made by the TVPRA of 2008 was to allow for SIJS eligibility where reunification with one or both parents is not viable due to abuse abandonment or neglect or a similar basis under state law. This change has led to what many advocates call “one-parent SIJS cases,” where the child was abused, abandoned, or neglected by one parent but resides with the other parent. The proposed regulations do not offer any clarification about how USCIS views these cases. The language in the regulations merely mirrors the language in the statute.
Abuse, Abandonment or Neglect or Similar Basis under State Law. The preamble to the proposed regulations contains useful language stating that the viability of reunification due to abuse, abandonment, or neglect, or a similar basis under state law, is a question that lies within the expertise of the juvenile court, after applying the relevant state law. In addition, the preamble notes that the concepts of abuse, abandonment and neglect are not defined in the INA and therefore derive from state law and vary from state to state.
Consent Requirements. Issues of consent have been a significant source of confusion and litigation. The INA states that petitioners for SIJS must obtain the consent of the Secretary of Homeland Security. In the case of children who are not in the custody of the Department of Health and Human Services (HHS), the federal agency responsible for the care and custody of unaccompanied alien children apprehended by the Department of Homeland Security, the proposed regulations clarify that consent to the juvenile court order is not required. Rather, the approval of the I-360 application serves as the consent of the Secretary of Homeland Security. The consent requirement differs for unaccompanied alien children in the custody of HHS. A petitioner for SIJS who is in the custody of HHS must seek “specific consent” from HHS if he or she seeks a juvenile court order that would alter his or her custody status or placement.
180-Day Adjudication. The TVPRA of 2008 added a requirement that USCIS adjudicate I-360 petitions for SIJS within 180 days. The proposed regulations clarify that the 180-day period of time begins when a receipt notice from USCIS is issued. If USCIS issues a request for evidence (RFE) on the case, the 180-day period will start over from the date when USCIS receives the required information.
Adjustment of Status. The proposed regulations also implement changes to the statute in the TVPRA 2008 relating to the grounds of inadmissibility and adjustment of status. The following grounds of inadmissibility do not apply to those seeking adjustment of status as a special immigrant juvenile: public charge (INA § 212(a)(4)); labor certification (INA § 212(a)(5)(A)); aliens present without inspection (INA § 212(a)(6)(A)); misrepresentation (INA § 212(a)(6)(C)); stowaways (INA § 212(a)(6)(D)); documentation requirements (INA § 212(a)(7)(A)); and aliens unlawfully present (INA § 212(a)(9)(B)). The following grounds of inadmissibility cannot be waived : conviction of certain crimes (INA § 212(a)(2)(A)); multiple criminal convictions (INA § 212(a)(2)(B)); controlled substance traffickers (INA § 212(a)(2)(C)); and security, terrorism, foreign policy, Nazis, genocide (INA § 212(a)(3)(A, B, C, E)). Any other ground of inadmissibility may be waived for humanitarian reasons, family unity, or in the public interest.