What Happens to the Unaccompanied Children Who Cross into the United States?

2014 brought about an unprecedented humanitarian crisis at the border between the United States and Mexico.  Over 60,000 children, mostly from El Salvador, Guatemala and Honduras, crossed the border into the United States without their parents.  Many were escaping violence and abuse in their home countries, especially violence from the illegal drug trade and the street gangs.  In legal terms, they are called "unaccompanied alien children."

The responsibility for caring for unaccompanied minor children falls on the Office of Refugee Resettlement of the U.S. Department of Health and Human Services.  The goal is to find a sponsor in the United States to care for each child while that child awaits a hearing before an Immigration Judge.  Most of the time, that sponsor is a parent, relative or family friend already in the United States.

However, with the number of unaccompanied children crossing the border remaining at shockingly high levels, it often takes time for ORR to find a suitable sponsor.  The average wait is about thirty-two (32) days.  While ORR is looking for a sponsor, children are housed in detention facilities, separate from adult detainees.

Even after ORR finds a sponsor, many of the children remain subject to abuse.  Critics argue that the U.S. Government has created a "pseudo-foster-care system" with no oversight or government follow-up.  Once a sponsor is found, the Government takes it on the honor system that the sponsor will act in the child's best interests.  In reality, some children have been subject to emotional, physical and sexual abuse from their sponsors.

Meanwhile, the children continue to face removal proceedings in Immigration Court.  Because immigration proceedings are civil law proceedings, and not criminal proceedings, the U.S. Government takes the position that it is not required by the Constitution to provide legal counsel, as it would be in criminal court.  One Immigration Judge shocked many by asserting that three and four year old children could learn immigration law well enough to represent themselves in Immigration Court.  Some organizations, like the ACLU, have pressed the Government to accept responsibility for providing attorneys to represent unaccompanied minors in removal proceedings.

What is clear is that the unaccompanied children represent the most vulnerable of those making the dangerous trek to the United States.  Once in the United States, they may qualify for such programs as asylum or Special Immigrant Juvenile Status (SIJS).  The U.S. Constitution requires that the children be provided with due process of law before being shipped back to their home countries.

Here at William J. Kovatch, Jr., Attorney at Law, PLLC, we provide quality legal representation to children who have come into the country without their parents.  While past results cannot be used to guarantee results in future cases, we have obtained asylum for children abused. in their home country, and have successfully petitioned for SIJS for many children.  If you are a sponsor for an unaccompanied child, and looking for legal advice, call us.

By:  William J. Kovatch, Jr.
(703) 837-8832
Se habla espanol: (571) 551-6069.

Judge Makes Special Immigration Juvenile Status (SIJS) Findings

A judge on the Juvenile and Domestic Relations General District Court in Virginia signed an order today making the findings required to permit a juvenile from Central America to apply to U.S. Citizenship and Immigration Services for Special Immigrant Juvenile Status, or SIJS.  SIJS is one of the more unique immigration statuses in that the law authorizes state courts to make the initial findings before the juvenile can apply to USCIS.

In order to qualify, the alien must be under 21, unmarried and apply to a court in the state where he or she resides which has jurisdiction over minors.  The state court must first find that the juvenile is dependent on the state court.  Dependent can mean that the state court places the juvenile with a state agency for care, or with a private individual.  The court must then find that reunification with one or both of the juvenile's parents is not viable due to abuse, neglect, abandonment or a similar ground under state law.  Finally, the state court must find that it is not in the juvenile's best interests to be returned to his or her home country.

In today's proceeding, the juvenile's father was an alcoholic who physically abused the mother.  The father threw the juvenile out of the house with the mother's acquiescence.  The juvenile, who faced harassment at the hand of street gangs at school, fled to the United States where his older sister lived.  Once in the United States, his parents refused to provide any financial support.

The juvenile's sister applied to the court for custody, and requested that the judge make the SIJS findings.  The judge agreed, permitting the juvenile to proceed with his application with USCIS.

Applying for custody is a typical way in which a responsible adult can assist a juvenile in obtaining the required SIJS findings.  Because the law permits a finding that reunification is not viable with one or both parents, often a parent who is present in the United States can apply for custody of his or her own child in order protect that child from the abuse or neglect of the parent who remained in the foreign country.  Once a state juvenile court has jurisdiction through a custody petition, the parent can then ask the court to make the required findings.

If the juvenile is in Immigration Court proceedings, a practitioner can request that the court continue, or delay, the proceedings while the juvenile is applying for the SIJS findings in state court.  Once the state court makes the findings, the practitioner can then request that the Immigration Court case be terminated to allow the juvenile to apply with USCIS.  The end result is the granting of permanent residency to the juvenile, and an opportunity to apply for U.S. citizenship in the future.

By:  William J. Kovatch, Jr.

For an appointment, call (703) 837-8832.
Se habla espanol (571) 551-6069.