These young people need more help, not less

Last week, Rep. Bob Goodlatte (R-Va.), chair of the House Judiciary Committee, sent a letter to the U.S. Department of Homeland Security Secretary Jeh Johnson, highlighting allegations of fraud in connection with the Special Immigrant Juvenile (SIJ) program. He requested that the secretary take immediate anti-fraud measures. Any government benefits program must detect and respond to fraudulent applications. But Goodlatte’s requests are unnecessary given the anti-fraud measures already in place. Moreover, Goodlatte has helped push proposed legislation through the House Judiciary Committee that would cut back on SIJ eligibility and leave many vulnerable children without protection. Goodlatte clearly misunderstands that SIJ is deeply rooted in American values about protecting children from harm and these proposed changes will increase the already daunting challenges that child immigrants face. 

Special Immigrant Juvenile Status is available to youth under the age of 21 who have been abused, neglected, abandoned, or similarly mistreated by at least one of their parents. Congress created SIJ in 1990 after officials from the Santa Clara Social Services Agency in California sought a solution to the problems faced by undocumented immigrant youth who were aging out of the foster care system. SIJ facilitates permanency and self-sufficiency by providing an option for lawful permanent residence. Lawful status, in turn, enables youths to access employment and educational opportunities. SIJ was, and continues to be, the only provision in substantive immigration law that considers a child’s best interests—the cornerstone principle of U.S. child protection systems. 

{mosads}Last year, we saw a dramatic increase in the number of Central American children migrating to the United States. This was largely due to treacherous violence in the region where gangs are instilling terror in young people through shootings, kidnappings, and murders. Many of these children are eligible for SIJ, which involves a complex, two-step process that starts in state court and concludes before the federal immigration service. First, the immigrant youth must obtain an order from a state court (such as the family court) with factual findings related to the child’s age and marital status, whether the child had suffered abuse, neglect, or abandonment, and whether it would be in the child’s best interests to not return to the country of origin. Youth who have obtained that court order may then apply to the U.S. Citizenship & Immigration Service for SIJ status and adjustment to lawful permanent residence, more commonly know as a green card.  

Both steps involve anti-fraud measures. State court judges are skilled fact-checkers and experts in identifying child abuse and neglect. In fact, the reason Congress delegated the factual findings to state courts was their proficiency as child welfare experts. At the federal level, USCIS is statutorily required to review each SIJ application for potential fraud. Recent decisions published by the USCIS Administrative Appeals Office indicate that adjudicators are indeed taking that role seriously.

With the increase in immigrant youth fleeing violence, abuse, neglect, and other atrocities in their home countries, U.S. justice systems have inevitably felt the pressures of rising numbers of applications. Recent research reports have revealed that, in fact, SIJ is inadequate to protect children as currently implemented. Many immigrant youth who are eligible for SIJ are not even able to access the state court systems, due to administrative and procedural barriers, as well as state legislation that does not conform to the federal law. Nationwide, efforts by leading legal and professional organizations, such as the New York City Bar Association, seek to build capacity in state court systems to deal with the influx and improve access for those in need. In New York, the Fordham Law School Feerick Center for Social Justice, the Fund for Modern Courts, and many legal service organizations are working together to support the court systems and remove barriers that make it difficult for eligible youth to access the state court system and obtain the findings necessary to apply for SIJ. 

Goodlatte’s proposed legislation would reduce the number of children eligible for SIJ by requiring that state courts make a finding of abuse, neglect, or abandonment against both of the child’s parents, rather than only against one parent, as the existing law requires. SIJ was pioneering in that it was the first piece of legislation that brought immigration law more closely in line with well-established child welfare principles. Increasing administrative barriers or reducing substantive eligibility will only exclude desperate children from the protection they need. Instead, dialogue and collaboration between state courts and the service provider community will help ensure that avenues for relief are open to those who need protection, while protecting the integrity of the system—as well as the intended beneficiaries—from those with fraudulent intentions.  

Byrne is project director of the NY Unaccompanied Immigrant Children Project at the Fordham Law School Feerick Center for Social Justice.