Navigating Special Immigrant Juvenile Status in Illinois State Courts BY JUDGE DEBRA B. WALKER & ANDREA FISCHER
During the past two years the issue of special immigrant juvenile (SIJ) status has become more and more prevalent in Illinois domestic relations cases. Collaboration is needed between federal and states courts to successfully apply SIJ status. State juvenile courts are tasked with making decisions based on children’s best interests and federal courts have the authority to make decisions on immigration issues. David B. Thronson, Kids Will Be Kids? Reconsidering Conceptions of Children’s Rights Underlying Immigration Law, 63 Ohio St. LJ. 979, 1004 (2002).
State courts making SIJ findings only serve as the first gatekeeping measure before a minor can start the more involved process to become a lawful permanent resident. Id. SIJ findings enable a qualifying minor to petition the United States Citizenship and Immigration Services for an adjustment of status to become a lawful permanent resident. In re Ervin C.-R., 2020 IL App (2d) 200236, 2. The state of Illinois has incorporated a parallel statute to the federal statute, which went into effect in 2019. 750 III. Comp. Stat. Ann. 46/613.5, This parallel statute calls upon courts to determine if juveniles possibly qualify for SIJ status by establishing:
“(A) the child is declared a dependent of the court; or (B) the child is placed under the custody of an individual or entity appointed by the court; and
that reunification of the child with one or both of the child’s parents is not viable due to abuse, neglect, abandonment, or other similar basis; and
that it is net in the best interest of the child to be returned to the child's or parent's previous country of nationality or last habitual residence.”
750 Ill. Comp. Stat. Ann. 46/613.5(c). All elements must be independently proven on the juveniles behalf. In re Ervin C.-R., 2020 IL App (2d) 200236, 3. Below, each element will be discussed individually. Then, the age and venue requirements for SIJ status eligibility will be defined. Finally, recommendations for both attorneys representing juveniles that potentially qualify for SIJ status and judges tasked with making such findings will be made.
Dependent on the Court
Juveniles are considered dependent on the court when the court must make a “judicial determination” about their “custody and care.” In re Ervin C.-R., 2020 IL App (2d) 200236 (quoting 8 C.F.R. § 204.11).
In re Ervin C.-R, the appellate court held that the child was dependent on the court because it was required to make a decision about his custody. In re Ervin C.-R., 2020 IL App (2d) 200236, 3-4. The court determined that “[a] judicial order allocating sole decision-making responsibility and parenting time is, unquestionably, an order affecting a child’s custody and care” Id. The appellate court noted that the child was still dependent on the trial court despite not having an appointed non-parent guardian or being placed in foster care. Id. at 3.
One or Both Parents
Both the federal law and the parallel Illinois statute provide that it must be established that reunification of the juvenile with one or both parents is net viable. 8 US.C. $ 1101{a)(27)(J)(i); 750 III. Comp. Stat. Ann. 46/613.5(c)(2). Notably, various state courts have interpreted the federal law differently. In re Erick M., 820 N.W.2d 639, 647 (2012) (holding that courts in Nebraska should consider whether reunification is possible with either parent, regardless of whether one is an absent parent); In re Israel O., 182 Cal. Rprt. 3d 548, 556 (2015) (holding that juveniles “for whom a suitable parental home is available in the United States and reunification with a parent in his or her country of origin is not viable due to abuse, neglect or abandonment” are eligible); Marcelina M.-G. v. Israel S., 973 N.Y.S.2d 714, 722 (2013) (holding that juveniles are eligible for SIJ status when “reunification with just one parent is not viable”). Some state courts, like those in Massachusetts, have declined to endeavor to interpret the federal law at all, holding that their only role is to make decisions about the possibility of reunification with the parent named in the filings. Guardianship of Penate, 76 N.E.3d 960, 967 (2017). However, Illinois state courts do not have the luxury of declining to engage in statutory interpretation because the parallel Illinois statute uses the same language of “one or both” that has been the subject of the aforementioned scrutiny. 8 U.S.C. § 1101{a){27)(J)(i); 750 III. Comp. Stat. Ann. 46/613.5(c){2).
Illinois state courts have determined that the statute’s meaning of one or both parents should be interpreted to mean that juveniles are eligible for SIJ status when reunification is not viable with at least one parent. In re Ervin C.-R., 2020 IL App (2d) 200236, 4; In re Est. of Nina L. ex rel. Howerton, 2015 IL App
(1st) 152223, 41 N.E.3d 930, 937.
In In re Ervin, the court held that when abuse, neglect, or abandonment by one parent is established, it is sufficient to establish eligibility for SIJ status findings. In re Ervin C.-R., 2020 IL App (2d) 200236, 4. The court determined that the trial court's failure to acknowledge father Jasinto’s abandonment of son Ervin made its findings incomplete, even though Ervin was living with his mother. Id. at 1. Thus, even when reunification with one parent is possible juveniles are still eligible for special immigrant juvenile status.
Not in the Best Interest to Return to Home Country
The court must consider whether it is (or is not) in the best interest of the juvenile to return to their home country when determining their eligibility for SIJ status. In determining the best interest of the child, the
following factors should be considered:
“(a) the physical safety and welfare of the child, including food, shelter, health, and clothing;
(b) the development of the child’s identity;
(c) the child’s background and ties, including familial, cultural, and religious;
(d) the child’s sense of attachments, including:
(i) where the child actually feels love, attachment, and a sense of being valued (as opposed to where adults believe the child should feel such love, attachment, and a sense of being valued);
(ii) the child’s sense of security;
(iii) the child’s sense of familiarity;
(iv) continuity of affection for the child;
(v) the least disruptive placement alternative for the child;
(e) the child’s wishes and long-term goals;
(f) the child’s community ties, including church, school, and friends;
(g) the child’s need for permanence which includes the child’s need for stability and continuity of relationships with parent figures and with siblings and other relatives;
(h) the uniqueness of every family and child;
(i) the risks attendant to entering and being in substitute care; and
(j) the preferences of the persons available to care for the child”
705 III. Comp. Stat. Ann. 405/1-
3(4.05)(a)-(j). The court is not required to overtly reference all of these factors in their determination of the best interests of the child. In re Curtis W., 2015 IL App (1st) 143860, 56; People v. Lishon M. (In re Tajannah O.), 2014 IL App (1st) 133119, 19, Additionally, no single factor is dispositive of the issue. In re Curtis W., 2015 IL App (Ist) 143860, 56; Berkley v. III. Dep't of Children & Family Servs. (In re Austin W.), 214 III, 2d 31, 50. The court may also consider “the nature and length of the [juvenile]’s relationship with the present caretaker’ and the effect that a change of placement would have upon the emotional and psychological weil-being of the [juvenile,]” Berkley v. III. Dep’t of Children & Family Servs. (In re Austin W.), 214 III. 2d 31, 50 (quoting In re Violetta B., 210 III. App. 3d at 534).
When the court determines that it is not in the best interest of the juvenile to return to their country of origin, they satisfy the third required finding. 750 III. Comp. Stat. Ann. 46/613.5(c)(3). In in re Ervin, the court held that the finding that Ervin’s best interests would not be best served by returning to Guatemala is sufficient to establish eligibility for SIJ status findings. In re Ervin C.-R., 2020 IL App (2d) 200236, 4. In this case, the court determined that Ervin’s maternal grandparents were not fit to care for him in Guatemala due to their advanced age and Enriqueta, Ervin’s mother, could not afford to pay for his care or education in Guatemala, Id. at 1. Such circumstances led the court to decide that it was not in Ervin's best interest to return to Guatemala. Id. at 4. This determination satisfied the third finding required to be eligible for SIJ status. Id.
Venue
State courts are the proper venue for the preliminary SIJ status findings. 750 III. Comp. Stat. Ann. 46/613.5(b), The U.S. Citizenship and Immigration Services (USCIS) detail which courts have the authority to make these SIJ status findings in their manual. U.S. CITIZENSHIP AND IMMIGRATION SERVICES, Policy Manual, https://www.uscis.gov/book/export/htmi/68600 (last updated Oct. 1, 2021). The USCIS defines a juvenile court as “a US. court having jurisdiction under state law to make judicial determinations on the custody and care of juveniles.” Id. While this can vary from state to state, USCIS provides that the following types of state courts may qualify: “juvenile, family, dependency, orphans, guardianship, probate, and youthful offender courts” Id. However, merely having jurisdiction over juveniles is not sufficient to establish a court as a qualifying juvenile court. Id. Specifically, “a court of general jurisdiction that issues an order with SIJ- related findings outside of any juvenile custody or dependency proceeding would generally not be acting as a juvenile court for STJ purposes.” Id. Ultimately, the burden rests with the petitioner to show that the court issuing the SIJ status findings is acting as a juvenile court. Id.
Age
Special immigrant juvenile status is specifically available only to those, as is evident from the name, who are juveniles, The USCIS provides that the dependency of the juvenile on the court is required to be in place before they reach the age of majority. Id. As this dependency is a required element for SIJ status eligibility, it necessitates that the subject of the findings has not yet reached the age of majority. The age of majority in Mllinois is 18 years. See Munck v. Munck, 62 III. App. 3d 223, 228; 750 III. Comp, Stat. Ann. 46/801(d)-(e). In In Jn re Ervin, the court determined that Ervin was 14 years old, which made him below the Illinois age of majority and eligible for SIJ status findings. in re Ervin C,-R., 2020 IL App (2d) 200236, 4.
However, the USCIS does provide for additional eligibility even if the subject of the SIJ status is over the age of 18. U.S. CITIZENSHIP AND IMMIGRATION SERVICES, Policy Manual, https://www.uscis.gov/book/export/html/68600 (last updated Oct. 1, 2021). If “the petitioner was the subject of a valid order that was terminated based on. age before or after filing the SIJ petition {provided the petitioner was under 21 years of age at the time of filing the SIJ petition)”, then the petitioner is not required to be under the jurisdiction of a state juvenile court during the adjudication of the SIJ petition in federal court. Id.
Recommendations
Attorneys representing juveniles who would benefit from SIJ status must first ensure that they select the correct venue for their client in state court. Looking to the function of the court, rather than the explicit name of the court, will provide a more persuasive basis upon which to show that the court is acting as a juvenile court. Id. Once the proper venue has been selected, attorneys will need to initiate an action that establishes dependency on the court. 750 III, Comp. Stat. Ann. 46/613.5(c)(1). This can include “judicial determinations and issued orders under state law on dependency or custody, parental reunification, and the best interests of the child” U.S. CITIZENSHIP AND IMMIGRATION SERVICES, Policy Manual, https://www.uscis.gov/book/export/html/68600 (last updated Oct. 1, 2021). After this dependency has been shown, attorneys should demonstrate by declaration the dependency on the state juvenile court, the impossibility of parental reunification with one or both parents, and that it would not be in the best interest of the juvenile to return to their country of origin. Id.
Once the state juvenile court has made its findings about these three elements, attorneys will need to submit their petition for SIJ classification for the USCIS to make its determination. U.S. CITIZENSHIP AND IMMIGRATION SERVICES, Policy Manual, https://www.uscis.gov/book/export/html/68600 (last updated Oct. 1, 2021). The USCIS bases its decision on the dependency parental reunification, and best interests, Id. The following eligibility requirements must be established to qualify SIJ classification: the juvenile is resent in the US., unmarried, and under the age of 21 when filing the Special Immigrant Form; the juvenile state court has issued orders that meet the three requirements; U.S. Department of Homeland Security must consent; and (if applicable) US. Department of Health and Human Services must consent. Id.
Judges who are presented. with petitions to make findings also have obligations. The Illinois statute that provides for SIJ status findings put requirements on courts, The statute states “the court shall issue an order” with the relevant findings. 750 III. Comp. Stat. Ann, 46/613.5(c) (emphasis added). Therefore, it is not within the discretion of judges to refuse to making findings or submit orders if a juvenile has demonstrated, or attempted to demonstrate, the three elements. The federal courts rely on these findings as a means of gatekeeping before the actual SIJ classification can be given. US. CITIZENSHIP AND IMMIGRATION SERVICES, Policy Manual, https://www.uscis.gov/book/export/html/68600 (last updated Oct. 1, 2021). When a court decides not to issue SIJ status findings, appellate courts may review that decision de novo if the decision was not made based on the credibility of witnesses. In re Ervin C.-R., 2020 IL App (2d) 200236, 2.8
Judge Debra B. Walker has served in the Cook County Domestic Relations Division for over 12 years. She is active with many organizations including the ISRA, Women’ Bar Association of Illinois, Illinois Supreme Court Commission on Professionalism, Illinois Bar Foundation, and Illinois Judges Foundation. Andrea Fischer was Judge Walker’ extern during the surmmer of 2021, She isa 2L at the University of Illinois College of Law. She is working in the Federal Civil Rights Clinic this year. Fischer serves as the Secretary for the Student Bar Association and the Community Service Chair for the Women’s Law Society.