A Brief Summary of Special Immigrant Juvenile Status Findings in Texas
The Immigration and Nationality Act specifies the manner by which a child may be eligible for special immigrant juvenile status ("SIJS"). This status permits a child to apply for a green card while remaining in the United States, if the child obtains findings of fact from a state juvenile court and then applies for and obtains such status from the United States Citizenship and Immigration Services.
Generally, a state juvenile court must specifically find that:
The child is an immigrant who is present in the United States;
The child is dependent on a juvenile court located in the United States or placed under the custody of, an agency or department of a State, or an individual or entity appointed by a State or juvenile court located in the United States;
The child's reunification with one or both of the his or her parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law; and
The court determines that it would not be in the child's best interest to be returned to his or her (or his or her parent’s) previous country of nationality or country of last habitual residence.
One Texas Court of Appeals has stated that for purposes of SIJS, a "juvenile court" means any court having jurisdiction under state law to make judicial determinations about the custody and care of juveniles. In Texas, family district courts have jurisdiction over child welfare, custody, support, dependency neglect, and delinquency, among other matters. Thus, family district courts are considered juvenile courts under the SIJS statute.
In Texas, courts typically make SIJS findings in orders in suits affecting parent-child relationships ("SAPCRs"). Courts generally include a determination of conservatorship (custody) and a parenting plan in orders that include SIJS findings.
Employing creative or novel arguments, petitioners can sometimes convince state courts to find that a child was abandoned in order to attain SIJS. However, at least one Texas Court of Appeals has cited a 1966 Texas Supreme Court case for the proposition that "abandoned" means "deserted" and that "abandonment" with respect to a child means the desertion of a child by the child's parents under circumstances that implied a conscious disregard or indifference to the child. This means that a Texas court that senses a possibility its decision may be overturned by an appellate court likely would be reluctant to make SIJS findings on the basis of abandonment where it is obvious that a biological or adoptive parent is voluntarily placing his or her child with a U.S. citizen only to later apply to the U.S. Citizenship and Immigration Services for lawful residency.
Child custody cases involving SIJS findings can be overwhelming to petitioners and complex even to tenured state family and juvenile judges. If you need help understanding SIJS in relation to child custody, please schedule a consultation today. Do not rely on this post as legal advice. This post does not create an attorney-client relationship between the Firm and the reader. Do not act in reliance on the contents of this post without seeking the advice of counsel.