Disparate Outcomes: The Quest for Uniform Treatment of Immigrant Children

Abstract

Increasingly, immigrants and immigration issues are present in family court practice. One underutilized protection available to provide relief to abused, abandoned, and neglected immigrant youth is Special Immigrant Juvenile Status (SIJS). After providing an overview of the law and regulations concerning SIJS, this article presents the challenges that immigrant youth face in seeking SIJS. By focusing on one hypothetical child, we illustrate how children are treated differently based upon how the child came to this country, what happened once the child arrived here, and whether and when child welfare agency involvement was triggered. Often children who lived through very similar abuse or neglect circumstances will have very different immigration outcomes depending on whether they were found to be in need of state care, as compared to those outside the system (residing with a relative caregiver, homeless, or simply unable to access the child welfare system). In short, a youth's ability to access state courts and secure the necessary state court findings is often left to chance and happenstance. We propose several strategies to increase both flexibility and uniformity as to how these matters are handled by our state courts. Among our recommendations are the need for increased training (both general and SIJS focused), the development of model and standardized policies and tools, and legislative reform. Practitioner's Key Points: Provides a definition and overview of Special Immigrant Juvenile Status (SIJS) Explains the challenges of immigrant youth, practitioners and judges in establishing eligibility for SIJS for children in need Offers concrete scenarios to illustrate the problem Explores solutions that have been implemented in certain jurisdictions, such as training programs, uniform court practices, and special legislation, to facilitate the state court role in SIJS Key Points for the Family Court Community: SIJS provides immigration relief to abused, abandoned, neglected, and other children in need—eligibility depends on special state court findings All SIJS‐eligible children do not have the same ability to access the state courts for relief and to secure the special findings, which leads to many children remaining vulnerable to deportation Several states have used training, uniform screening tools, model orders, and legislation to reduce the disparate treatment of eligible children depending on their custody circumstances Additional state and federal reforms can further ensure that all eligible children have access to the state courts and are identified as SIJS‐eligible