Introduction

Under the Immigration and Nationality Act (INA), an unmarried child under the age of 21 may be eligible for what is called “special immigrant juvenile” classification if he or she is subject to state juvenile court proceedings related to findings of abuse, neglect, abandonment, or something similar in state law at the hands of one or both of the child’s parents. The juvenile court findings must also include that the child cannot be viably reunified with one parent due to one of the aforementioned grounds and that the child’s best interests would not be served by being placed in his or her country of nationality (or parents’ country of nationality).

In a previous article, we discussed the eligibility rules for special immigrant juvenile classification [see article]. In this article, we discuss the petitioning process for special immigrant juvenile classification, including revocation of special immigrant juvenile status and administrative review. Our article focuses on the statutes, regulations, and guidance in the United States Citizenship and Immigration Services (USCIS) Policy Manual (PM). We discuss adjustment of status for special immigrant juveniles in a separate article [see article].

To learn more about special immigrant juvenile-related issues, please see our growing selection of articles [see category].

Documentation and Evidence In Support of Form I-360

The USCIS discusses the requisite documentation and evidence needed to support a Form I-360 petition for special immigrant juvenile classification at 6 USCIS-PM J.3 [PDF version].

In order to seek special immigrant juvenile classification, a petitioner must submit the following:

Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant;
A copy of the petitioner’s birth certificate or other evidence of age;
Copies of the juvenile court order (or orders) and administrative document (or documents) that establish eligibility for special immigrant juvenile classification and evidence of a factual basis for the court’s findings; and
If applicable, a copy of HHS consent.

If the petitioner cannot for whatever reason submit a birth certificate as evidence of age, 8 C.F.R. 204.11(d)(1) provides a list of alternative documents: Passport, official foreign identity document issued by a foreign government (such as a Cartilla or Cedula), or other document that the USCIS determines is acceptable for establishing the petitioner’s age.

The petitioner may file the Form I-360 alone. If there is an immigrant visa currently available for the special immigrant juvenile classification or if the petitioner is otherwise eligible, he or she may concurrently file the Form I-485, Application to Register Permanent Residence or Adjust Status. We discuss this in more detail in our article on special immigrant juvenile adjustment [see article].

Evidence Relating to Juvenile Court Orders and Administrative Documents

The USCIS discusses evidence relating to juvenile court orders and administrative documents at 6 USCIS-PM J.3 [PDF version]. We discuss court orders as an eligibility requirement in our article on special immigrant juvenile eligibility [see section].

Definition of Juvenile Court

Under 8 C.F.R. 204.11(a), the term “juvenile court” is defined as a U.S. court that has jurisdiction to make judicial determinations about the custody and care of children. The title and type of court varies by jurisdiction.

Qualifying Juvenile Court Proceedings

A juvenile court or other judicial or administrative bodies authorized or recognized by a juvenile court may make the required determination “that it is not in the petitioner’s best interest to be returned (to a placement) in the petitioner’s or his or her parent’s country of nationality or last habitual residence.” The USCIS adds that, “[i]f a particular juvenile court establishes or endorses an alternate process for a best interest determination, a finding from that process may satisfy this requirement.”

Requisite Juvenile Court Findings

In order for an order to qualify a child for special immigrant juvenile status, the relevant juvenile court order(s) “must provide the required findings regarding dependency or custody, parental reunification, and best interests.” These findings may be made in a single order or in multiple orders. The orders must establish the specific conclusions of law that were made under the applicable state law. The order cannot cite to immigration law and regulations. The order need not use the same terms as the INA at section 101(a)(27)(J) “as long as the findings have the same meanings as the requirements for SIJ classification.” The USCIS notes that the language of the order may vary based on the language of the applicable child welfare law. Accordingly, if a court makes findings based on a state law that is “similar to abuse, neglect, or abandonment,” the petitioner must establish that the “nature and elements” of the state law are similar.

USCIS Consent and Factual Basis for Juvenile Court Findings

Regarding USCIS consent, an order that simply cites to the INA or regulatory language is generally insufficient. However, an order that makes the necessary findings and supplements these findings with the factual basis underlying the findings “are usually sufficient to establish eligibility.” If the order does not establish the factual basis for all of the required findings, the USCIS may request evidence to make a determination. The USCIS does not require any specific documents to establish the factual basis of the court’s findings or the entire record considered by the court. However, the burden of proof is on the petitioner to provide the factual basis for the court’s findings. The PM provides a non-exhaustive list of examples of documents that a petitioner may submit to support the factual basis:

Supporting documents submitted to the juvenile court (if available);
The petition for dependency or complaint for custody or other documents which initiated the juvenile court proceedings;
Affidavits summarizing the evidence presented to the court;
Records from the judicial proceedings; and
Affidavits or records that are consistent with the findings made by the court.

The USCIS explains that the court order or supporting evidence should specifically include the following:

The individual or entity with whom the child is placed and the factual basis for the findings;
Which specific grounds of abuse, neglect, abandonment, or similar basis under state law apply to which of the child’s parent(s) and the factual basis for the court’s findings that parental reunification was not viable; and
The factual basis for the court’s determination that it was not in the petitioner’s best interest to be placed in his or her country of nationality or last habitual residence or his or her parents’ country of nationality or last habitual residence.

Limitations on Supporting Evidence

The USCIS-PM also outlines limitations on additional evidence for guidance for its officers. First, due to confidentiality rules, USCIS officers “generally do not request information or documents from sources other than the SIJ petitioner or his or her legal representative.” USCIS officers are cautioned to exercise careful judgment when considering statements made by children at the time of their initial apprehension that call into question the findings made by a juvenile court. Where there is significant contradictory information in the petitioner’s immigration file that the juvenile court was likely not aware of when it made its decision, USCIS officers may request additional evidence from the petitioner or his or her representative. USCIS officers are prohibited from requiring or requesting that a petitioner contact the person or family members who allegedly abused, neglected, or abandoned him or her.

Adjudication of Special Immigrant Juvenile Petition

The USCIS addresses adjudication issues at 6 USCIS-PM J.4 [PDF version].

The USCIS has sole jurisdiction over petitions for special immigrant juvenile classification. If the petitioner is otherwise eligible, he or she may apply for adjustment of status based on special immigrant juvenile classification.

180-Day Clock

Under The Trafficking Victims Protection and Reauthorization Act (TVPRA 2008), Pub. L. 110-457 (Dec. 23, 2008), the USCIS generally adjudicates special immigrant juvenile petitions within 180 days of the Form I-797, Notice of Action receipt date. Under 8 C.F.R. 103.2(b)(10), the 180-day clock stops if the USCIS issues a request for evidence and resumes the day on which the petitioner furnishes the USCIS with such evidence. The 180-day time frame applies only to the initial adjudication of the Form I-360.

Special Immigrant Juvenile Interviews

Under 8 C.F.R. 103.2(b)(9), the USCIS has discretion to interview special immigrant juvenile petitioners as part of the adjudicative process. Due to the vulnerable nature of special immigrant juvenile petitioners, the USCIS endeavors to conduct interviews only when necessary.

In cases where the USCIS decides that an interview is necessary, it “strives to establish a child-friendly interview environment…” USCIS officers are instructed to “avoid questioning the petitioner about the details of the abuse, neglect, or abandonment suffered…” Interviews will generally focus “on resolving issues related to the eligibility requirements, including age.” Petitioners may bring a trusted adult to the interview in addition to an attorney or accredited representative. However, the trusted adult may not interfere in the interview or otherwise coach the petitioner. The USCIS may make a determination as to the appropriateness of the adult’s attendance in the interview and observe his or her interactions with the child. The USCIS may interview the child without the adult present.

RFEs and NOIDs

Under 8 C.F.R. 103.2(b)(8), the USCIS may issue a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) if further evidence is needed to determine the petitioner’s eligibility. The USCIS provides a non-exhaustive list of reasons that it may issue an RFE or NOID (quoted):

The record lacks the required dependency or custody, parental reunification, or best interest findings;
It is unclear if the order was made by a juvenile court in accordance with state law;
The evidence provided does not establish a reasonable factual basis for the findings;
The record contains evidence or information that directly and substantively conflicts with the evidence or information that was the basis for the court order; or
Additional evidence is needed to determine eligibility.

Approval of Special Immigrant Juvenile Petition

The USCIS will notify the petitioner if the petition is approved.

Denial of Special Immigrant Juvenile Petition

If the petition is denied, the USCIS provides the petitioner with a written denial which includes a detailed basis for the adverse decision, in accord with 8 C.F.R. 103.3(a). We discuss the appeals process in the next section [see section].

Revocation of Special Immigrant Juvenile Petition

A special immigrant juvenile petition may be revoked after it is approved and before the special immigrant juvenile adjusts status. A revocation may occur automatically under specified circumstances or on notice.

A special immigrant juvenile petition is automatically revoked under the following circumstances:

The petitioner marries;
The petitioner is reunified with one or both parents by virtue of a juvenile court order (provided one of the parents was subject of the nonviable reunification determination); or
The juvenile court reverses its determination that it would not be in the petitioner’s best interest to be returned to a placement in his or her country of nationality or last habitual residence or his or her parent’s country of nationality or last habitual residence.

If a special immigrant juvenile petition is automatically revoked, the USCIS will issue notice of the revocation under 8 C.F.R. 205.1(b).

The USCIS may opt to revoke an approved special immigrant juvenile petition on notice “for good and sufficient cause such as fraud.” This provision is found in section 205 of the INA and in the implementing regulations at 8 C.F.R. 205.2. Here, the USCIS will issue a Notice of Intent to Revoke (NOIR) before revoking the petition. The NOIR provides the petitioner with an opportunity to offer evidence in support of the petition and to rebut the grounds for revocation alleged in the NOIR, in accord with 8 C.F.R. 205.2(b).

Special Immigrant Juvenile Appeals, Motions to Reopen, and Motions to Reconsider

Special immigrant juvenile appeals, motions to reopen, and motions to reconsider are covered at 6 USCIS-PM J.5 [PDF version].

Upon the denial or dismissal of a special immigrant juvenile petition, the petitioner may submit a Form I-290B, Notice of Appeal or Motion. The Form I-290B must be submitted with fee or a request for a fee waiver [see article]. The petitioner may use the Form I-290B to file an appeal with the Administrative Appeals Office (AAO), a motion to reconsider a USCIS decision (made by the AAO, a field office, or a service center), or a motion to reopen a USCIS decision (made by the AAO, a field office, or a service center).

The petitioner must file the appeal or motion within 30 days of the denial of dismissal or within 33 days if the denial or dismissal decision was sent by mail.

However, if the petitioner is appealing the revocation of an approved special immigrant juvenile decision, the appeal must be filed within 15 calendar days of service of the decision, or 18 days if the denial was sent by mail.

There is no late filing exception for appeals and motions to reconsider, so it is imperative for petitioners to act expeditiously within the filing time frames.

The USCIS does, however, have discretion to excuse the petitioner’s failure to file a motion to reopen within filing time, frames “where the petitioner demonstrates that the delay was reasonable and beyond his or her control.” This is outlined at 8 C.F.R. 103.5(a)(1)(i).

Conclusion

Eligibility for special immigrant juvenile classification hinges on the petitioner’s meeting the basic age requirements and the existence of a qualifying court order. One should always consult with an experienced immigration attorney for guidance in filing a special immigrant juvenile petition and adjustment application and any related issues concerning eligibility or appeals. Please see our article on special immigrant juvenile-related adjustment of status to learn about the next step in the immigration process for special immigrant juveniles [see article].

To learn more about the subject, please see our growing selection of articles on special immigrant juveniles and related issues [see category].