Special Immigrant Juvenile Status: Expanding Access to Protection for Abused and Neglected UICs
By Alexandra Fung
In a legal landscape with little recognition of a child’s unique vulnerabilities, Special Immigrant Juvenile Status (SIJS) is a welcome exception, providing protection to children who have been abused, abandoned, or neglected by their parents and offering a pathway to lawful permanent residence and citizenship. Yet SIJS presents a particular challenge to lawyers representing UICs because the Immigration and Nationality Act (INA) created a bifurcated process to demonstrate eligibility, taking children outside of immigration law and practice at the outset of the SIJS process and into state and family court systems. Before a child can apply for SIJS, a juvenile court must first make findings regarding the child’s custody, as well as abuse, neglect, or abandonment by one or both parents. INA § 101(a)(27)(J). Only after a juvenile court makes these findings can a child submit her SIJS petition with U.S. Citizenship and Immigration Service (USCIS). Although children who are not in removal proceedings can file their applications to adjust status with USCIS concurrently with their SIJS petitions, children in removal proceedings, including most UICs, must wait until USCIS approves their SIJS petitions before making their requests to adjust status in immigration court.
This multi-step process spanning two very different legal systems presents a particular challenge to UIC advocates, who are typically immigration attorneys accustomed to working within the federal immigration system and are generally unfamiliar with the nuances of the state juvenile and family court systems. Increasingly, legal service providers must think strategically about how to help their clients access state courts to proceed with SIJS petitions. This chapter outlines two such strategies: (1) developing in-house family law expertise to represent children (or caretakers) before the state court, as well as in their immigration cases, and (2) partnering with family law experts to manage the state-court component while preserving internal resources to represent UICs exclusively in their immigration proceedings.
Developing In-House Family Law Expertise
Many legal service providers serving UICs have developed family law expertise to represent children both in initial state court actions and before USCIS and the immigration court. Although the majority of these legal services providers did not have internal expertise in child and family law when they began representing UICs, they identified this expertise as an important area for organizational growth to expand their ability to serve SIJS-eligible children. Below are some best practices for organizations that want to develop in-house expertise:
1. Anticipate potential conflicts. Some states allow children to petition for the appointment of their custodian or guardian; others designate the parent or proposed guardian as the party responsible for filing state-court petitions. In SIJS cases, attorneys must remember who the client is in any particular action, and avoid entering into representation agreements if an actual conflict or significant potential for conflict exists between clients.
A. When possible, attorneys should limit representation in both the state court action and the immigration case so that only the child is the client. Most organizations that manage both the state court and immigration components of an SIJS case represent only the child in both actions; whether or not this is possible will depend on the specifics of state law, and if the child can file her own petition or request for SIJS findings in state court. The age of the child may be a limiting factor in her ability to present such a petition, particularly in actions to name a guardian or determine matters of custody between two parents. Where this is the case, some organizations limit their representation to children who are old enough, under state law, to file such petitions. By representing only the child in the state court action, lawyers avoid the possibility of diverging or conflicting interests between the child and her caretaker, which may compromise the lawyer’s ability to represent the child in her immigration case.
B. If state law or other considerations make it impossible or highly impractical to represent the child in state court, attorneys should carefully consider if a dual representation arrangement may be possible, where the attorney represents the caretaker in state court and represents the child in her immigration proceedings. Before entering into a dual representation agreement with the family, attorneys should discuss the arrangement candidly with the prospective clients and communicate to both the child and her caretaker the potential for conflicts in a dual representation arrangement. Although the interests of the child and her caretaker may be aligned at the start of the representation, an important aspect of the attorney’s role is to help the family recognize potential conflicts so that they enter into the agreement fully informed. For example, a possible conflict could arise in connection to a caretaker’s undocumented status and the potential risks of becoming involved in legal proceedings on the child’s behalf. Additionally, families should consider the possibility of a breakdown in the relationship between the caretaker and the child which may jeopardize the custody order from the state court before the SIJS and adjustment case is completed. If the child and the caretaker both agree to the dual representation after having discussed the potential for conflicts, it is a good practice to have each acknowledge this agreement in writing. See, for example, this sample dual representation agreement drafted by attorneys at the American Bar Association's Children's Immigration Law Academy in Houston, Texas (please note, this particular agreement was drafted with the Texas Rules of Professional Responsibility in mind, and advocates should review their own state laws when drafting similar agreements). As with all documents customized for child clients, attorneys should use simple, clear, age-appropriate, and child-friendly language when drafting dual representation agreements for SIJS cases. (See Chapter 3, “Customizing Documents for Children.)
C. When conflicts cannot be avoided or the possibility of a conflict is too great, consider partnering with other community advocates to represent the child’s caretaker. In some cases, it may be impossible to represent the child in the state court action or enter into a dual representation agreement with both the child and her caretaker. For example, judges in certain jurisdictions explicitly prohibit dual representation or require independent representation of all parties. Or, cases may arise where it is clear that the potential for conflict between the caretaker and the child is so great at the outset of representation that the attorney cannot in good faith enter into a dual representation agreement. In these cases, the child’s attorney should consider other resources to represent the caretaker in the family court action. Best practices for developing these partnerships are examined in more detail below.
2. Develop family and child law expertise in-house. Legal services providers with in-house family law capability can help UIC clients precede with their SIJS petitions in state court without having to refer them to other attorneys. Strategies for building an in-house family law expertise include:
A. Hire staff with family law expertise. Some legal services providers serving UICs, such as Legal Services for Children in San Francisco and The Door, Inc. in New York City, have long and rich histories of representing children in legal proceedings beyond immigration matters. However, most legal services providers serving UICs are staffed by immigration attorneys with little (or no) family law experience. Increasingly, immigration legal services organizations that work regularly with UICs are hiring staff with family law experience to grow their SIJS programs. In addition to having someone on staff manage the state court component of these cases, in-house experts also can help train and mentor colleagues in state court practice, helping to expand SIJS services.
B. Seek out community experts to help train staff. Legal services providers can also reach out to family law practitioners in the community to help train staff in local state court practice and procedure. Law school clinics, legal aid organizations specializing in family law, and private family law practitioners are all potential training resources. Juvenile and family courts also may offer occasional trainings for attorneys, in addition to continuing legal education seminars offered by local bar and other professional associations.
C. Establish mentoring relationships. In addition to identifying trainings for staff, organizations should identify opportunities for ongoing support through mentoring relationships. Mentoring staff in family law could be a great pro bono opportunity for attorneys who want to support UIC work and engage in the issue, but who have limited capacity or interest in handling individual cases. Seek mentors from state bar associations, listservs for family law practitioners, law school clinics, or other non-profit legal services providers. Mentors can provide practitioners with practical advice for their cases, including insights regarding particular judges or clerks, filing tips, and ongoing support and advice as an organization develops its expertise.
D. “If at first you don’t succeed, try, try again.” Regardless of how well-prepared an attorney may be before seeking that first SIJS predicate order in state court, there will be a learning curve and it will take time and experience to learn the nuances of a new legal system and local practice.
3. Assess capacity. Developing the expertise to practice in state court will take significant time and resources, so it is important for an organization to assess if it is a good resource investment or if other options, such as the partnerships discussed below, might be a better option.
Creating Partnerships with Family Law Practitioners
Although many legal services providers complete the state court portion of SIJS cases in-house, it can be a labor intensive process. It is a particularly challenging endeavor for organizations whose service area may span multiple jurisdictions, requiring attorneys to file state court petitions in many different cities, counties, or even states, each with its own particular laws, court rules, and practices. If the service area crosses state lines, an organization also must have attorneys licensed in multiple states to practice in state court, as well as a familiarity with the law governing family court proceedings in each state.
Developing strategic partnerships with legal practitioners in the community allows legal service providers with expertise in immigration law to focus on that component of SIJS proceedings while relying on family law experts to represent clients in state court. When developing these partnerships, consider the financial constraints of many SIJS clients and identify practitioners willing to provide pro bono or “low”bono services where possible. Even small or solo family law practices may be willing to consider some limited pro bono or reduced-fee services for clients, not only to support these clients, but also as a way to grow their practices and expand their client base. Equally important to identifying low-cost services, however, is guiding clients to competent and trustworthy practitioners, particularly when relying on referrals to the private bar.
1. Develop pro bono partnerships. A pro bono partnership might take different forms, including identifying law firms or solo practitioners with family-law background to take the state-court portion of SIJS cases, or partnering with legal services agencies with family law expertise to jointly serve families of SIJS-eligible youth. These partnerships may be distinct from the typical pro bono model of many immigration legal service providers because the referring agency may not have the expertise to provide training or technical support to the pro bono attorney in the state court proceedings, relying instead on the pro bono attorney’s existing or developing expertise. Also, these cases may be distinct from more traditional, discrete pro bono matters with respect to the expected time frame of the pro bonoattorney’s commitment. Given the ongoing nature of family law proceedings (particularly if the court monitors any custody issues), pro bono partners must be aware upfront if their commitment might extend beyond the entry of the SIJS special findings order.
A. Law firms interested in developing this specific area of pro bono expertise may be attracted to this type of partnership. (Read about “The Minnesota Experiment”on page 14.) Law firm partners willing to invest in an SIJS pro bono project can develop this specialized pro bono program, growing it to allow them to offer training and mentorship opportunities within the firm, likely only needing limited support from the legal services partner regarding SIJS requirements for the predicate order.
B. Legal services organizations that typically handle family and juvenile court matters may want to develop a discrete project to serve UICs, allowing these attorneys to use their expertise to serve a new population. In Chicago, the National Immigrant Justice Center (NIJC) partners with Catholic Charities Legal Assistance (CCLA) to serve SIJS-eligible children and their families. While NIJC provides immigration legal services, CCLA, which offers various family law services, has developed a special project to represent the caretakers of immigrant youth in guardianship and allocation of parental responsibilities (previously known as custody) proceedings. When NIJC identifies SIJS-eligible UICs living within CCLA’s service area, it refers the caretakers of these UICs to CCLA, which screens the caretaker as a potential client for guardianship and allocation of parental responsibilities proceedings. NIJC works closely with CCLA to ensure that filings and orders submitted in state court meet the requirements for SIJS. After CCLA obtains a predicate order, NIJC can represent the child in her SIJS and adjustment of status applications. In this model, clients are served at no or low cost by legal services providers each operating within its area of expertise but working together to ensure that children can satisfy both the state court and immigration requirements for SIJS eligibility.
C. Law school clinics are another source of pro bono legal services and partnership opportunities. If local law schools have family law clinical programs, organizations should consider contacting clinical professors about potential pro bono placements to seek SIJS predicate orders.
2. Provide private referrals. Sincedifferent jurisdictions have varying access to pro bono resources, programs that do not provide in-house representation in state court should consider other sources of family law expertise, including referring UICs and their families to private attorneys, or contracting with these attorneys to handle the state court representation for SIJS clients.
A. Create referral lists and materials. Legal services providers who screen UICs for SIJS but are unable to help them secure predicate orders should refer the children and their caretakers to other attorneys. Before creating a referral list, establish criteria for identifying attorneys to include. Criteria may include, for example, willingness to take cases pro bono or past experience with SIJS cases. Provide informational materials about SIJS for UICs who will be referred out. These may include background information about SIJS for any family law attorneys they seek, or contact information for the immigration legal services provider if it is able to provide technical support to attorneys seeking SIJS predicate orders. Legal services providers should be aware of any ethical rules in their state regarding referrals to other attorneys.
B. Maintaining referral lists. Although practitioners may want to offer clients as many options as possible for seeking state court representation, referral lists also offer an opportunity to guide clients toward competent, trustworthy attorneys. One good practice for maintaining the integrity of referral lists is to update them regularly, using a survey or other objective criteria to determine which attorneys remain on the list. Legal Services for Children (LSC), for example, hosts a local SIJS taskforce and listserv from which it draws referral sources. Every six months, members of the listserv participate in a survey through which LSC learns, for example, attorneys’ comfort level with SIJS petitions, the counties in which they practice or are willing to practice, and their fee structure. Similarly, members of the taskforce also fill out a questionnaire which helps determine members’ familiarity with and expertise in SIJS cases.
C. Contract with private attorneys. A new way in which some organizations are beginning to expand their capacity for SIJS cases is by contracting out the state-court work to private attorneys who can offer low-cost services. In these cases, where possible, the provider pays the private contract attorney a flat fee to handle the family-court portion while accepting the case in-house for representation in immigration proceedings. This may be a particularly useful model in multi-jurisdictional settings, where developing in-house expertise or pro bono partnerships across multiple jurisdictions may be time- and resource-prohibitive.
3. Other considerations. Creating wide networks of providers to serve SIJS-eligible children in state court proceedings in any capacity helps increase access to this form of protection for UICs. In addition to pro bonopartnerships and building relationships with private practitioners, consider developing state or county-wide coalitions of SIJS providers to share best practices, strategies, and referrals. Another opportunity could be to work within state court systems to train and educate professionals in these systems about SIJS, including juvenile court judges, guardians ad litem, panel attorneys, and child protection professionals. Partnerships with child protection systems also could be mutually beneficial, resulting in greater understanding and access to family court for immigration practitioners, as well as increased representation in immigration proceedings for non-citizen wards.
Educating and Developing Relationships with State Courts
Regardless of whether legal services providers develop state-court expertise in-house or partner with experts in the community, education of state-court judges and other state-court actors such as guardians ad litem, panel attorneys and child protection professionals always will be critical to expand access to SIJS for UICs. Given the local nature of state court proceedings, this education often will happen on a case-by-case basis as local courts and judges are presented with requests for SIJS findings in individual cases. For case-by-case education, resources created specifically for state court actors by USCIS may be particularly persuasive tools, including USCIS’s overview of SIJS for juvenile court judges and child welfare professionals. Some organizations, such as the Michigan State University College of Law Immigration Clinic, have drafted state-specific legal memoranda to outline the legal background and authority for the state court’s role in the SIJS process, and the Immigrant Legal Resource Center has created an Immigration Benchbook for Juvenile and Family Courts including information for family courts about SIJS. Finally, as part of public outreach campaign launched in FY2014, the USCIS Office of Policy and Strategy conducts trainings and outreach nationally for state court actors regarding SIJS.