Abstract: For the past few decades, undocumented children have arrived at the United States border in growing numbers. While many have been eligible for asylum and other forms of legal status, those fleeing parental violence and neglect have fallen into a gaping hole in our immigration system’s options for relief. Therefore, in 1990, Congress created “Special Immigrant Juvenile Status”—or “SIJS”—to provide a pathway to Lawful Permanent Residence for children who have been abused, abandoned, or neglected by one or both of their biological parents. While the federal government typically holds the exclusive power to rule on immigration-related matters, SIJS is unique. An SIJS applicant must first attend state court and request the judge make special “child welfare findings” to support her application. A federal agency then reviews the state court’s findings and decides whether to grant or deny the petition. Unfortunately, many state court judges, ill-informed and confused about their role in the process as well as what factors to consider when making their “best interests” determinations, are reluctant to make findings in favor of SIJS applicants. Some judges rule on the merits of the application—which is the federal government’s role—instead of limiting their considerations to what is in the child’s best interest—which is their actual role. In effect, the success of an SIJS applicant depends not on the merits of her claim, but rather on the jurisdiction she happens to land in. This produces inequitable results and derails Congress’s intent in creating the statute. This Note suggests the process be amended by working toward two long-term goals: (1) creating a nation-wide “best interest” standard based largely on current U.S. family law statutes and the United Nation’s Convention on the Rights of the Child, and (2) creating a standard SIJS order that all state court judges must complete when deciding SIJS matters.
Read the full publication here: https://drexel.edu/law/lawreview/issues/Archives/v9-2/paznokas/