Special Immigrant Juveniles: In Brief
Released: 2014-08-29T00:00:00

Abused, neglected, or abandoned children who also lack authorization under immigration law to reside in the United States (i.e., unauthorized aliens) raise complex immigration and child welfare concerns. In 1990, Congress created an avenue for unauthorized children who become dependents of the state juvenile court to remain in the United States legally and permanently as lawful permanent residents (LPR) under the Immigrant and Nationality Act (INA). If an LPR meets the naturalization requirements set in the INA, he or she can become a U.S. citizen.

The Special Immigrant Juvenile was originally conceived for a small number of children of unauthorized alien parents who were declared dependent by state juvenile courts. Although the unauthorized alien resident population in the United States has grown substantially since 1990, the number of SIJs who became LPRs remained under 1,000 per year until FY2008. In that year, Congress enacted provisions in the Trafficking Victims Protection Reauthorization Act of 2008 that altered the eligibility criteria for SIJ status as part of a package of amendments pertaining to unaccompanied alien children. Now, the recent increase in unaccompanied alien children arriving in the United States has cast a spotlight on SIJ status because these unaccompanied children may apply for, and some may obtain, LPR status through this provision.

This report provides a brief explanation of the statutory basis of SIJ status and how it has evolved. It also presents statistics on the number of children who have applied for and received SIJ status since FY2005. The report concludes with a discussion of the applicability of SIJ status for unaccompanied alien children.

Evolving Criteria for SIJ Status

Children of unauthorized aliens who had been abused, neglected, or abandoned have long posed complex immigration and child welfare concerns. Prior to the statutory provisions added to the Immigration and Nationality Act (INA) in 1990, unauthorized minors who were declared dependent on the state juvenile courts were akin to stateless individuals in that there was no home where they could return. They were perceived as a particularly vulnerable group within the child welfare system, given the unique difficulties they faced as they transitioned into adulthood. For example, because they were not legally present in the United States, they could not be employed when they reached a legal working age. They would be subject to removal proceedings and deportation to a country where they might have little attachment or familiarity.

The Immigration Act of 1990 ( P.L. 101-649 ) added the SIJ provision (among other major revisions) to the INA in response to growing concerns over foreign children in the United States who were homeless, orphans, or victims of abusive family situations. The provision enabled unauthorized alien children who become dependents of the state juvenile courts to remain in the United States legally and permanently. As originally enacted in 1990, the language establishing SIJ status was fairly simple. To be eligible for SIJ, the foreign national was an individual

(i) who has been declared dependent on a juvenile court located in the United States and has been deemed eligible by that court for long-term foster care, and (ii) for whom it has been determined in administrative or judicial proceedings that it would not be in the alien's best interest to be returned to the alien's or parent's previous country of nationality or country of last habitual residence.

It was a small provision included in a major overhaul of immigration law with little fanfare.

Seven years later, in response to a perception that some unauthorized aliens might have been relinquishing parental rights so that their children could become SIJs, Congress added language amending the INA to ensure that the SIJ benefit was not "sought primarily for the purpose of obtaining the status of an alien lawfully admitted for permanent residence, rather than for the purpose of obtaining relief from abuse or neglect or abandonment." The 1997 act expressly amended the definition of a "special immigrant juvenile" to include only those juveniles deemed eligible for long-term foster care based on abuse, neglect, or abandonment . In addition, provisions in the 1997 act required that a juvenile who was in the custody of the federal government obtain specific consent from the Department of Justice to permit a juvenile court, which otherwise would have no custody jurisdiction over the juvenile alien, to exercise jurisdiction for purposes of a dependency determination.

In 2008, Congress amended the SIJ provisions in the INA to broaden their applicability. The Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA, P.L. 110-457 ), among other things, amended the SIJ eligibility provisions to (1) remove the requirement that a juvenile court deem a juvenile eligible for long-term foster care and (2) replace it with a requirement that the juvenile court find reunification with one or both parents not viable. According to U.S. Citizenship and Immigration Services (USCIS) legal guidance issued in 2009, an eligible SIJ would include the following.

[An unauthorized child] who has been declared dependent on a juvenile court; whom a juvenile court has legally committed to, or placed under the custody of, an agency or department of a State; or who has been placed under the custody of an individual or entity appointed by a State or juvenile court. Accordingly, petitions that include juvenile court orders legally committing a juvenile to or placing a juvenile under the custody of an individual or entity appointed by a juvenile court are now eligible.

The TVPRA of 2008 also revised the "specific consent" provisions in the INA, transferring the authority from the U.S. Department of Homeland Security (DHS) to the U.S. Department of Health and Human Services (HHS), the federal department that also has custody of unaccompanied alien children. Subsequently, USCIS field guidance required that juveniles in the custody of HHS obtain "specific consent from HHS to juvenile court jurisdiction where the juvenile court order determines or alters the juvenile's custody status or placement."

Expedited Processing of Petitions

The process of becoming an SIJ and ultimately an LPR includes multiple steps, as the child petitions for SIJ status after the juvenile court decision and then applies to adjust to LPR status. In response to concerns that the process was taking too long, the law requires USCIS to adjudicate SIJ petitions within 180 days of filing. The law also states that the foreign national may not be denied SIJ status if he or she "ages out" because the determination is based upon the individual's age when the petition was filed. To promote efficiency, the otherwise mandatory personal interview may be waived for juveniles under 14 years of age who are seeking SIJ status , or when it is determined that an interview is unnecessary.

A juvenile seeking SIJ status must demonstrate that an administrative or judicial proceeding has resulted in a determination that it would not be in the juvenile's best interest to be returned to the child's or the parent's previous country of nationality or country of last habitual residence. To pre-empt USCIS adjudicators from reconsidering the court's determination of abuse, abandonment, or neglect, t he field guidance states that the adjudicators "should f ocus on eligibility for adjustment of status and should avoid questioning a child about the details of the abuse, abandonment or neglect suffered." The law makes clear that a juvenile seeking SIJ status , at any stage of the SIJ process, cannot be required to contact the individual (or family members of the individual) who allegedly abused, abandoned, or neglected the juvenile. USCIS also must complete background checks, including biometric information clearances and name-checks of the juvenile . Juveniles seeking SIJ status are exempted from many of the inadmissibility grounds of the INA.

Eligibility for Federal Assistance

Generally, foreign nationals in the United States without authorization, including unauthorized children, are barred from most federal public assistance benefits and programs. The exceptions are a narrow set of specified emergency services and programs, which include Medicaid for an emergency medical condition, immunizations and testing for and treatment of symptoms of communicable diseases, emergency disaster relief, and services or assistance such as soup kitchens, crisis counseling and intervention, and short-term shelters. Only LPRs with a substantial work history or military connection are eligible for the full range of programs, as are asylees, refugees, and other humanitarian cases (for at least five to seven years after entry).

Those unauthorized juveniles who qualify as "unaccompanied alien children" are placed in the custody of the Department of Health and Human Services' (HHS) Office of Refugee Resettlement (ORR). Unaccompanied alien children are defined as those who lack lawful immigration status in the United States, are under the age of 18, and are either without a parent or legal guardian in the United States or no parent or legal guardian in the United States is available to provide care and physical custody. The unaccompanied alien children are cared for through a network of state-licensed ORR-funded care providers that provide classroom education, mental and medical health services, case management, and socialization and recreation. In May 2014, ORR reported that ultimately about 85% of the unaccompanied children in their custody are reunited with their families and that the average time in ORR care is about 35 days.

The TVPRA of 2008 makes those juveniles granted SIJ status who had been in the custody of HHS or already receiving certain services provided by the ORR eligible for the Unaccompanied Refugee Minors' (URM) Program in ORR. Subject to the availability of appropriations, ORR is required to reimburse the state where the SIJ child resides for the state's foster care expenditures on behalf of the child. Children who receive SIJ status are not eligible for federal foster care through Title IV-E of the Social Security Act.

Trends since FY2005

Figure 1 shows a tenfold increase in the number of children filing I-360 petitions requesting SIJ status, spanning from 311 in FY2005 to 3,994 in FY2013. In terms of the number of I-360 petitions approved, the numbers have increased from 73 in FY2005 to 3,432 in FY2013. Data on the subsequent adjustments from SIJ status to LPR status typically lag, but they also show similar trends. Partial I-360 data for FY2014 (through May 2014) indicate that the upward trend is continuing.

The LPR visa category of "Special Immigrants" encompasses several other subcategories and is statutorily limited to 7% of 140,000 (i.e., 9,800 foreign nationals) annually. Thus far, the total number of Special Immigrants admitted or adjusted each year has not reached the numerical limit. The natural or prior adoptive parents of the SIJ are not eligible for any immigrant benefits that LPRs and naturalized citizens may otherwise seek for their immediate relatives.

Issues Involving Unaccompanied Children

As noted at the onset, the surge in unaccompanied alien children arriving at the Southwest border of the United States has heightened congressional interest in SIJ status. While the data presented in Figure 1 do not differentiate among those unauthorized children who arrived unaccompanied by their parents and those who were removed from their parents because of abuse, abandonment, or neglect, many observers point to the similarity in the spiking trends of both categories. An emerging issue is whether the increase in unaccompanied alien children since FY2008 is resulting in an increase in SIJ requests since FY2008.

A recent survey of unaccompanied alien children found "abuse in the home" reported as one of the main reasons they fled. In addition, the Vera Institute of Justice conducted screenings of 11,719 unaccompanied children in ORR custody in FY2012 and found 3,724 children who might have been eligible for SIJ status. That an unaccompanied alien child is reunited with at least one parent or family member in the United States, some argue, does not prevent the child from seeking SIJ status based upon the abuse, neglect, or abandonment of the other parent. Some immigration and child welfare advocates assert that the number of children receiving SIJ status barely "scratches the surface of potentially eligible children," basing their conclusion on the assessment that many of the unaccompanied alien children arriving in the United States are eligible for SIJ status.

While some call for giving unaccompanied alien children generous access to the SIJ process, others assert that such a practice would be an unintended consequence of the 2008 TVPRA changes to SIJ status. This conclusion is based upon the opinion that the 2008 TVPRA amendments were not intended to provide SIJ status to unauthorized alien children reuniting with family in the United States. As noted above, ORR reports that ultimately about 85% of the unaccompanied children in their custody are reunited with their families, an outcome that some argue makes the reunited children ineligible for long-term foster care as well as SIJ status. Some advocating for lower immigration and increased restrictions on immigration are also calling for legislation to revise the SIJ criteria so reunification with either or both parents is not viable.