Lindsey KaleyKim Susser

Recent inquiries into a possible scheme to deceive judges in Queens Family Court in order to fraudulently secure legal status for young immigrants has garnered much media attention. Fraud is not acceptable in the immigration process or otherwise, and if fraud has occurred, every effort must be made to uncover it.

Unfortunately, the news reports have called into question the efficacy of Special Immigrant Juvenile Status (SIJS), a
form of immigration relief that has for decades protected immigrant children at risk. The reports incorrectly suggest that SIJS does not give judges the ability to fully evaluate cases and hold litigants to the same high standards of proof as other immigration laws. We disagree.

SIJS was created – with broad bipartisan support – in 1990 in response to the plight of unaccompanied minors in the US who were unable to reunite with their families, were eligible for foster care, and for whom the state determined it was not in their best interest to return to their home country.

In 1997, the Act was amended to clarify that SIJS was available as a remedy for children who had been abused, neglected, or abandoned, thereby codifying what was always the original purpose of the Act. In 2008, the Trafficking Victims Protection and Reauthorization Act expanded SIJS to include children who: are under 21 years of age; have been placed in the custody of a guardian or are eligible for foster care; were abused, abandoned, neglected (or other similar basis under state law) by one parent or both; and can demonstrate that it is not in their best interest to be returned to their home country. Only after the Family Court has established that a juvenile has been abused, abandoned or neglected, is the case sent to immigration officials for review.

A Rigorous Legal Framework

Jurisdiction over child protective cases falls within the purview of the States, which historically have been the most appropriate venue to adjudicate family law matters. In the case of unaccompanied immigrant children seeking SIJS, the law requires that they apply with a custodian or guardian, often a relative and the only support the child has.

Family Courts have safeguards in place to investigate and act if there are suspicions that immigration laws have been abused:

  • Family Court judges can, as in any case, evaluate the credibility of the parties and witnesses who appear before them. They are permitted to question witnesses and the evidence presented to them. If a judge determines that any party is not credible, she can ask for additional evidence, deny the petition for guardianship or not make the factual findings requested.
  • Family Courts have the authority to order either the Probation Department or Child Protective Services to investigate the home and caretaking arrangements of any individual who comes before the Court as a proposed guardian. These agencies often conduct home visits and interview the children, the proposed guardian, and other adults in the home. Fingerprints are also required in all guardianship proceedings in Family Court.

Putting the Safety of Children First

NYLAG and other organizations that represent children in both Family and Immigration Court see every day the impact that SIJS relief has on the lives of vulnerable young people, even more so since the influx of children fleeing violence in Central America that began last summer. Here is just one of story, based on an actual client we were able to successfully assist through the SJIS process:

  • Jose, a fifteen-year-old Ecuadorian, attended a NYLAG community-based clinic for unaccompanied children in 2014. His father abandoned him when he was born, and his mother died when he was a baby. Jose was raised by his aunt in town so rife with gang violence that it was dangerous just to go to school. When he was 11 years old, a gang came to his house and killed his uncle in front of him. Terrified that they would return because he had witnessed the murder, Jose fled to the U.S. He was detained by the U.S. border patrol and then sent to New York to live with another aunt. She takes excellent care of him and loves him like a son. Jose is particularly close to her son, his cousin. Jose has enrolled in school and goes to a psychologist regularly to cope with his trauma””neither of which he could do if he were returned to Ecuador. Determining that Jose was likely eligible for SIJS, his NYLAG attorney applied for the prerequisite Special Findings Order and guardianship in a hearing before a Family Court judge. The judge was skeptical because he believed that Jose could be returned to another guardian in Ecuador, and questioned whether the Family Court in New York had jurisdiction in the case. NYLAG presented a written memo and argued that there was precedent for the court to exercise jurisdiction. After a comprehensive hearing, the judge granted both guardianship and the Special Findings Order to Jose’s aunt, permitting NYLAG to proceed with the application for SIJS in Immigration Court.

There is no question that Family Courts in New York State have long been overburdened. But Congress provided for a Family Court judge to make the factual determinations necessary for SIJS eligibility because they are in the best position to do so.

We strongly believe that additional funding be provided to Family Courts to allow for more judges, translators, court staff, and training, and we hope the necessary funding is forthcoming. In the interim, Family Courts in New York and throughout the country must put the children like Jose first, and continue adjudicating SIJS cases.