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Recent Legal Changes for Immigrant Abused, Neglected and Abandoned Children

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By Rachel L. D. Thompson

skating_mainShe won first place as the top speed skater in the country for her age group (girls between 11 and 14 years of age) in 2018 and added a second gold medal the following year when she defended her title as the American champion. Jane’s(1) enthusiasm, grit and spirit are contagious, warm and natural. Her peers, coaches, friends and competitors all congratulate her without reservation and without fathoming the situation from which she came. The reality is Jane is deaf. She was born deaf and lived for five years in an orphanage in rural east Africa. In her culture, deafness is a disgrace and dishonor to families. Unfortunately, she was a victim of that cold reality. Her dad beat her, her mother abandoned her at an orphanage at the age of 2 and her siblings and neighbors incessantly bullied and ridiculed her.

After unfortunate circumstances that denied Jane the possibility of being adopted into a family residing in the United States, there were not many avenues left for Jane to find a way out of the cycle of abuse and abandonment to which she had been subjected. Miraculously, she was brought to the United States through humanitarian parole for her immediate medical needs to improve her hearing. Fortunately, due to remedies such as special immigrant juvenile status, Jane was able to remain in the United States and obtain a green card (lawful permanent resident status).

Special immigrant juvenile status, or SIJS, is a path to permanent residency for children who have been abused, neglected or abandoned by one or both parents. The Immigration Act of 1990 included SIJS for the very first time to protect vulnerable children committed to foster care. Seeing the need for more protection of such children, the Trafficking Victims Protection Reauthorization Act of 2008 expanded SIJS to aid abused, abandoned and neglected children without the intervention of foster care. The statutory requirements for SIJS are found at INA § 101(a)(27)(J) and 8 CFR § 204.11 and involve different courts and agencies. In order to qualify for SIJS, there are four requirements that must remain true throughout the application process:

• First, the applicant must be under the
age of 21 and unmarried;

• Second, the applicant must be dependent
on the court, or in the custody of a state
agency or department or an individual or entity
appointed by the court;

• Third, reunification with the biological
parents must not be viable due to abuse, neglect,
abandonment or a similar basis under
state law; and

• Lastly, it must not be in the applicant’s
best interests to return to his or his parents’
country of nationality or last habitual residence.

In order to obtain a green card through SIJS, the first step is obtaining an order from the state juvenile court which must cite the factual and legal basis of each statutory factor. After significant evidence and testimony, if the juvenile court determines that the child meets each of the findings cited above, it enters an order reciting these facts with the citation to the appropriate legal standard in the Virginia Code. SIJS petitions may be initiated in the context of a private custody order, foster care proceedings, adoption proceedings, truancy proceedings or any other proceedings involving a child. Given the overlap with state and federal law in the SIJS context, some judges were wary of entering such orders or were unsure of what their decisions meant in the broader immigration context. Throughout the commonwealth, SIJS orders were commonly appealed if the juvenile court failed to enter the findings needed to move forward with the immigration petition.

In 2017, a SIJS case, Canales v. Torres-Orellana, 800 S.E.2d 208 (Va. Ct. App. 2017), was appealed to the Virginia Court of Appeals in an effort to bring clarity and precedence to SIJS throughout the state. Instead, even more confusion arose out of this decision, specifically the third holding which stated that a Virginia court “has no authority to answer” the specific question of whether “it would not be in the alien’s best interest to be returned” to his country of origin, where such a finding would add to or alter “the responsibilities of Virginia courts in adjudicating custody or other matters.”(2) Most judges across the commonwealth interpreted the holding very narrowly in conformity with a widely cited memorandum from the Virginia Supreme Court’s Office of the Executive Secretary. The court’s inability to make findings of fact in regard to the child’s best interest not to be returned to their home country did not pass USCIS muster in the second stage of the SIJS process, since each finding was not explicitly stated in the order. This holding did not merely curtail SIJS but completely shut the door to any abused, neglected or abandoned child seeking this remedy. Ultimately, abused, neglected and abandoned children like Jane were not getting the protection and permanency they needed.

This holding immediately grabbed the attention of lawmakers all over the state with the intent to restore Virginia immigrant children’s ability to apply for SIJS. During the 2019 General Assembly session, Legal Aid Justice Center and other advocates worked closely with legislators and the governor’s office to pass several bills that overturned the Canales decision to permit judges the discretion to enter each of the findings when warranted. Senate Bill 1758 and House Bill 2679 passed their respective chambers with an overwhelming bipartisan majority of votes. The bills were then placed into conference committees in an attempt to gain consensus, and identical bills emerged that combined the approach of both. These bills garnered unanimous support in the House, and received only two dissenting votes in the Senate. Gov. Ralph Northam signed both bills on March 18, 2019, and the law took effect on July 1, 2019. The language of the statute gives Virginia J&DR courts “exclusive original jurisdiction . . . over all cases, matters and proceedings involving . . . [m]aking specific findings of fact required by state or federal law to enable a child to apply for or receive a state or federal benefit.” Va. Code Ann. § 16.1-241(A1) (2019). This section of Virginia Code does not require courts to enter any particular factual findings required by state or federal law, it merely establishes that they have jurisdiction to do so. It was evident from the unanimous support of the bills in the Virginia legislature that there was a simultaneous unanimous spirit of protecting vulnerable children.

Jane’s success as a young skater is one of many stories that would not have been possible but for SIJS. Since acquiring protection and permanency in the U.S., Jane has been thriving. Jane is eligible to become a U.S. citizen in two years and she cannot wait for that day. Meanwhile, she is breaking records and melting hearts across the country and around the world.

ENDNOTES

1. Her name and some identifying details have been changed to protect her privacy.
2. Canales v. Torres Orellana, No. 1073-16-4, 2017 Va. App. LEXIS 153, at *22 (Va. Ct. App. June 20, 2017) (citing 8 U.S.C. 1101(a) (27)(J)(ii)).

rachel-thompsonRachel L. D. Thompson,
is a partner at Poarch Thompson in Roanoke; she first moved to Southwest Virginia when she attended the Liberty University School of Law in Lynchburg, graduating in May 2012. The multiculturalism inherent in her native city, Philadelphia, and her family – Rachel’s mother was raised in South Africa during apartheid and her father was raised in Jamaica – instilled an early and profound love for diverse cultures, hope in the possibilities of immigration. She serves on the Federal Bar Association’s advisory board and is a committee member of its Young Lawyers Division. She is the chair of their Law School Committee, and she also speaks annually at its conferences. In 2018, Rachel won the FBA-ILS Younger Lawyer of the Year Award, and in 2016, DePaul Community Resources presented her with the Alison Parker Young Woman of Achievement Award. As of Spring 2019, she is an adjunct professor at Liberty University School of Law.